In Re Adopt. of: K.A.F., Appeal of: C.T. ( 2022 )

J-A29027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE ADOPTION OF: K.A.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.T., MOTHER :
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: No. 760 WDA 2021
Appeal from the Decree Dated April 19, 2021
In the Court of Common Pleas of Warren County Orphans' Court at
No(s): A.N. 13 of 2020
IN RE ADOPTION OF: C.A.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.T., MOTHER :
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: No. 761 WDA 2021
Appeal from the Decree Dated April 19, 2021
In the Court of Common Pleas of Warren County Orphans' Court at
No(s): A.N. No. 12 of 2020
IN RE ADOPTION OF: D.R.N., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.T., MOTHER :
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: No. 762 WDA 2021
Appeal from the Decree Dated April 19, 2021
In the Court of Common Pleas of Warren County Orphans' Court at
No(s): A.N. No. 11 of 2000
J-A29027-21
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 8, 2022
C.T. (“Mother”) appeals from the decrees dated April 19, 2021, which
involuntarily terminated her parental rights to her sons, D.R.N. (born in July
2010), C.A.F. (born in March 2012), and K.A.F. (born in September 2017).
We affirm.
We summarize the relevant facts and procedural history as follows. The
children have separate fathers. T.J.K. is the father of D.R.N, while G.A.F. is
the father of C.A.F. and K.A.F.1 Warren County Children and Youth Services
(“CYS”) has had periods of involvement with this family dating back to 2011.
N.T., 4/19/21, at 37. The agency provided services to Mother several times,
with its most recent case being opened in 2018. Id. At that time, Mother,
G.A.F., D.R.N., C.A.F., and K.A.F. resided together in a rural residence in
Warren County. Mother and G.A.F. used methamphetamine together
regularly until G.A.F.’s incarceration in March 2019. Id. at CYS Ex. 7.
Numerous methamphetamine users and other people with criminal records
and firearms came and went from the residence. Id.
In July 2019, the Pennsylvania State Police (“PSP”) filed drug-related
charges against Mother in Erie County after searching her car. Id. at CYS Ex.
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* Retired Senior Judge assigned to the Superior Court.
1 The decree for each child also terminated the parental rights of the respective
father. The fathers did not appeal or participate in Mother’s appeal.
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22. Several months later, PSP conducted a search of the family’s residence
and, on September 20, 2019, arrested Mother. The Commonwealth filed two
sets of charges in Warren County against Mother at two different dockets. The
first set of charges related to allegations that Mother trafficked drugs from the
family’s residence. Id. at CYS Ex. 21.2 The second set of charges related to
allegations that Mother sold drugs to an undercover agent at the home in May
2019. Id. at CYS Ex. 20.
Initially, CYS required Mother to make a family plan wherein her mother
would supervise her interactions with D.R.N., C.A.F., and K.A.F. Soon
thereafter, Mother became incarcerated. On October 2, 2019, CYS obtained
an emergency custody authorization to remove D.R.N., C.A.F., and K.A.F.
from Mother’s care. Id. at CYS Ex. 2. Two days later, the Commonwealth
filed a third set of charges against Mother in Warren County. This time, the
Commonwealth alleged Mother attempted to use urine that was not her own
during a urine drug screen in the Warren County jail. Id. at CYS Ex. 19.
Mother was released from jail on unsecured bond on October 30, 2019, in
order to receive cancer treatment.
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2 In addition to the drug-related charges, the Commonwealth charged Mother
with endangering the welfare of children (“EWOC”) based upon an officer’s
alleged observance of methamphetamine on Mother’s bed within reach of
D.R.N., C.A.F., and K.A.F., as well as allegations that she sold controlled
substances out of the residence where she and the children resided. As
discussed in footnote 3, infra, the Commonwealth later withdrew, inter alia,
the EWOC charge.
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An adjudicatory hearing began on October 25, 2019, and concluded on
January 27, 2020, at which time the trial court adjudicated D.R.N., C.A.F., and
K.A.F. dependent under 42 Pa.C.S. § 6302(1). In its findings, the trial court
described various issues contributing to its finding of dependency. Id. at CYS
Ex. 7. It noted Mother’s continued methamphetamine use, including just six
days before the January hearing, and her then-pending drug and EWOC
charges. Id. It found that home conditions in the family’s residence were
deplorable, including a frequent lack of utilities and clutter in the home and
yard. Id. The trial court also found Mother had neglected the children’s
routine and preventative health needs and she failed to ensure D.R.N.
consistently received his prescribed mental health medication. Id. D.R.N.
and C.A.F. had missed over twenty days of school, with their absences often
unexcused. Id. When they did attend, they were dirty, sleepy, and
inattentive. Id. Mother left the children with inappropriate caregivers,
resulting in an incident where C.A.F. was found walking to school on a highway
in twelve-degree weather. Id. Additionally, Mother did not follow the safety
plan the agency set up after her September 2019 arrest. Id.
Since their placement, D.R.N. and C.A.F. had “done extremely well in
school.” Id. Mother acknowledged that her housing with a roommate at the
time of the second hearing was not suitable for any of the children and that
she was unable to care for them. Id.
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The trial court ordered Mother to undergo drug and mental health
evaluations and comply with all recommendations for treatment; restricted
her from having adults in her home without disclosure to and approval by CYS;
and only permitted her to visit with D.R.N., C.A.F., and K.A.F. under
supervision and after a negative drug screen. Id.
In early September 2020, a federal grand jury indicted Mother, G.A.F.,
and other individuals based on allegations that they engaged in an array of
crimes over the previous two years related to drug trafficking and associated
activities, including from Mother’s residence in Warren County. Id. at CYS Ex.
18. Mother was arrested and incarcerated on these charges in federal prison.3
In early October 2020, Mother was released on bail to undergo cancer
treatment and because COVID-19 posed a high risk of complications for her
health. Upon her release, she began residing in a duplex adjacent to her
brother’s home in Titusville, Pennsylvania.
Meanwhile, D.R.N., C.A.F., and K.A.F. remained under CYS’s legal
custody. In May 2020, C.A.F. and K.A.F. moved to a kinship home with their
paternal aunt and uncle. They remained in this home, which is pre-adoptive,
at the time of the termination hearing. D.R.N. initially resided in the home
with his half-brothers. Due to behavioral difficulties between D.R.N. and
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3 Shortly thereafter, the Commonwealth withdrew some, but not all, of
Mother’s pending state charges because the federal indictment covered the
same conduct. At the time of the termination hearing, Mother was still
awaiting trial in her federal matter, with multiple state matters to follow.
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C.A.F., the kinship family requested D.R.N.’s removal and D.R.N. moved to a
youth shelter on February 18, 2021. D.R.N. requested that the agency explore
another kinship home with a person he referred to as his godmother. As this
person lived in Washington State, the agency began the process of placement
pursuant to the Interstate Compact on the Placement of Children (“ICPC”).
On November 9, 2020, CYS filed a petition for the involuntary
termination of Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b). The trial court conducted a hearing on April 19, 2021.
Cynthia K.D. Klenowski, Esquire, represented D.R.N., C.A.F., and K.A.F. and
assured the court there was no conflict between their best and legal interests.
N.T., 4/19/21, at 6-7. Mother’s court-appointed counsel, Tyler A. Lindquist,
Esquire, represented her at the hearing. As it related to Mother, CYS
presented the testimony of its caseworker, Eric Melquist. It also called Mother
as an adverse witness. In addition, CYS introduced, and the court admitted,
the dependency records of and permanency plans for D.R.N., C.A.F., and
K.A.F., Mother’s various state and federal criminal records, and several social
media posts by Mother. Id. at CYS Ex. 1-29. Mother testified in her own
defense and presented the testimony of her mother and her ministry leader
in Celebrate Recovery, a “Christ-centered 12-step recovery program” in which
Mother participates. Id. at 134-35.
At the conclusion of the hearing, the trial court announced its
determination that CYS met its burden of proof pursuant to 23 Pa.C.S.
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§ 2511(a)(1), (2), (5), (8), and (b) and placed findings of fact on the record.
Id. at 193-216. By decrees dated April 19, 2021, and recorded on April 20,
2021, the court involuntarily terminated Mother’s parental rights to D.R.N.,
C.A.F., and K.A.F.
Mother filed notices of appeal in D.R.N., C.A.F., and K.A.F.’s cases on
May 21, 2021. Based upon the related parties and issues in the cases, this
Court sua sponte consolidated the cases for purposes of appeal.4 Mother
presents four issues for our review:
1. Whether the lower court abused its discretion by finding that the
agency met its burden of clear and convincing evidence under 23
Pa. C.S.A. §2511(a)(1).
2. Whether the lower court abused its discretion by finding that the
agency met its burden of clear and convincing evidence under 23
Pa. C.S.A. §2511(a)(2).
3. Whether the lower court abused its discretion by finding that the
agency met its burden of clear and convincing evidence under 23
Pa. C.S.A. §2511(a)(5).
4. Whether the lower court abused its discretion by finding that the
agency met its burden of clear and convincing evidence under 23
Pa. C.S.A. §2511(a)(8).
Mother’s brief at 11 (capitalization altered; numbering supplied).5
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4The trial court complied with Pa.R.A.P. 1925. Mother’s compliance with Rule
1925 is discussed at length infra.
5There are several deficiencies in Mother’s brief upon which we could find
waiver. For example, despite Rule 2173’s clear instruction to number each
page of the brief separately, Attorney Lindquist failed to do so. See Pa.R.A.P.
2173. He did not include a single citation to the record in violation of Pa.R.A.P.
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Before addressing the merits of Mother’s issues, we must first determine
whether her appeals were timely filed. “It is well-established that timeliness
is jurisdictional, as an untimely-filed appeal divests this Court of jurisdiction
to hear the merits of the case.” Smithson v. Columbia Gas of
PA/NiSource, 264 A.3d 755, 759 (Pa.Super. 2021) (cleaned up). Pursuant
to Pa.R.A.P. 903(a), a notice of appeal must be filed within thirty days of the
order from which the appeal is taken. Mother’s notices of appeal were filed
thirty-one days after the trial court recorded the decrees in the dockets. At
first blush, then, they appear to be untimely filed, and the trial court and CYS
urge us to quash Mother’s appeal.
To determine the timeliness of Mother’s filings, we must first determine
whether the trial court’s recording of the decrees was synonymous with
entering the decrees. Rule 4.6 of the Pennsylvania Orphans’ Court Rules of
Procedure requires an orphans’ court clerk to give immediate written notice of
an order terminating parental rights to counsel for the parties or to
unrepresented parties directly. Pa.O.C.R. 4.6(a). It further mandates that
the clerk note in the docket the date when it provided such notice. Pa.O.C.R.
4.6(b).
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2119 and sticks to generic recitations of the law despite the requirements in
our rules to develop arguments by discussing authorities. See Pa.R.A.P. 2117,
2119. Although we have muddled through Attorney Lindquist’s failures to
abide by our rules, the fact that they have not substantially impeded our
appellate review is due to this Court’s efforts, not Attorney Lindquist’s.
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Rule 4.6(b) is derived from Pennsylvania Rule of Civil Procedure 236,
which has a similar mandatory notation requirement. Pa.O.C.R. 4.6, Note;
accord Pa.R.C.P. 236(b). Our appellate rules explain that in civil matters, the
“date of entry of an order . . . shall be the day on which the clerk makes the
notation in the docket that notice of entry of the order has been given as
required by [Rule] 236(b).” Pa.R.A.P. 108(b). Because Pa.O.C.R. 4.6(b) is
akin to Pa.R.C.P. 236(b), we conclude that an order pursuant to orphans’ court
jurisdiction is entered, for purposes of Pa.R.A.P. 903(a), once a court official
complies with Pa.O.C.R. 4.6.
Our Supreme Court has held that “an order is not appealable until it is
entered on the docket with the required notation that appropriate notice has
been given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).
This holding is a “bright-line rule, to be interpreted strictly.” In re L.M., 923
A.2d 505, 509 (Pa.Super. 2007). The parties’ actual notice of the order does
not alleviate the effect of the clerk’s failure to comply with the rule. Frazier,
supra, at 115. When a clerk fails to make the required notation in the docket,
this Court has found a breakdown of court operations and that the thirty-day
appellate period has not started to run. Carr v. Michuck, 234 A.3d 797, 806
(Pa.Super. 2020).
In the instant case, the docket does not contain the notation required
by Rule 4.6; it indicates only that the clerk recorded the decrees on April 20,
2021. On the back of the last page of the decrees in the certified record, the
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words “ISSUED” and “DATE” are stamped in ink, with “Copies RJH CYS-CKDK
HLB-TAL” in handwriting next to the former and “4-20-2021 SE” in
handwriting next to the latter.
Even if the clerk intended this note to convey that the clerk provided
notice of the decrees to counsel on the listed date, this note fails to satisfy
Rule 4.6’s mandate to note on the docket the date that notice was given. “The
procedural requirements reflected in the rules serve to promote clarity,
certainty and ease of determination, so that an appellate court will
immediately know whether an appeal was perfected in a timely manner, thus
eliminating the need for a case-by-case factual determination.” Frazier,
supra, at 115. Local practices using shorthand, abbreviations, initials, or the
like do not satisfy the rule-based “obligation to note on the docket the date .
. . notice was given.” Carr, supra, at 805 (requiring a notation that provides
this Court with “clarity and confidence” of the date the appellate clock started
ticking); see also Smithson, supra, at 759-60 (rejecting note that was
ambiguous as to whether the clerk provided immediate notice to the parties).
Accordingly, although Mother’s notices of appeal were filed in the trial
court thirty-two days after the decree was issued and thirty-one days after
the decree was recorded, the breakdown in court operations means that the
appeal period never began to run. As such, we do not quash Mother’s appeals
as untimely. See Carr, supra; Smithson, supra. Instead, we “will regard
as done which ought to have been done” and treat the appeals as timely filed,
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i.e., as if the clerk inscribed the notation required by Rule 4.6.
Commonwealth v. Carter, 122 A.3d 388, 391 (Pa.Super. 2015).
Nonetheless, before we proceed to the merits, we have another
preliminary matter to address. Since this is a children’s fast track appeal,
Mother was required to file contemporaneously concise statements of errors
complained of on appeal pursuant to Pennsylvania Rules of Appellate
Procedure 905(a)(2) and 1925(a)(2)(i) and (b). Mother failed to do so, which
rendered her notices of appeal defective. See In re K.T.E.L., 983 A.2d 745,
747 (Pa.Super. 2009) (holding that “the failure of an appellant in a children’s
fast track case to file contemporaneously a concise statement with the notice
of appeal pursuant to rules 905(a)(2) and 1925(a)(2)” does not divest this
Court of jurisdiction, but “will result in a defective notice of appeal.”).
In considering the disposition of Mother’s defective notices of appeal,
we bear in mind that we should impose “[t]he extreme action of dismissal . .
. sparingly.” Id. Instead, we consider on a “case by case basis” whether
there has been “substantial compliance” with the rules and prejudice to the
other parties. Id. We also pay due respect to the “harshness of the penalty”
compared to the “substantive rights involved.” Stout v. Universal
Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980); see also In re
Adoption of C.M., 255 A.3d 343, 362 (Pa. 2021) (acknowledging the “solemn
reality that a decree terminating parental rights is widely regarded as the civil
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law equivalent to the death penalty, forever obliterating the fundamental legal
relationships between parent and child”).
Ultimately, Attorney Lindquist filed concise statements in each case.6
Neither CYS nor D.R.N., C.A.F., and K.A.F. have alleged any prejudice from
the delay. The trial court, which originally had filed an opinion in support of
quashing the appeals as untimely filed, subsequently issued a new opinion
outlining the reasons for the decrees. See generally Trial Court Opinion,
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6 Despite the responsibility for compliance with the appellate rules falling
squarely upon counsel, Attorney Lindquist’s substantial compliance with Rule
1925 only manifested after an operose process involving efforts by this Court’s
staff, a remand, and orders by this Court and the trial court. To wit, this Court
contacted Attorney Lindquist five times between June 11 and July 6, 2021,
regarding his failure to comply with Pa.R.A.P. 1925. See Order, 7/6/2021, at
1. Despite assuring this Court on two different occasions that he would send
the concise statements promptly, Attorney Lindquist did not do so. Id. In
light of Attorney Lindquist’s hollow promises, on July 6, 2021, this Court
retained jurisdiction but remanded the case to the trial court for a
determination of whether Attorney Lindquist had abandoned his client. Id.The following day, both the trial court and this Court ordered counsel to file
concise statements by July 16, 2021. Counsel complied. For reasons that are
unclear, a concise statement did not appear in K.A.F.’s docket. Upon request
from this Court, Attorney Lindquist corrected this omission and the trial court
certified a supplemental record including the concise statement as to K.A.F.
Furthermore, Attorney Lindquist also failed to file timely a docketing
statement with this Court pursuant to Pa.R.A.P. 3517. This Court twice
ordered Attorney Lindquist to comply before Attorney Lindquist finally filed a
docketing statement seventy days after the original deadline. Finally,
Attorney Lindquist filed Mother’s brief and reproduced record late in violation
of Pa.R.A.P. 2185(2)(i) and 2186(a)(1). As discussed supra, the brief did not
comply with multiple appellate rules. We remind counsel that his client is
entitled to effective assistance of counsel. See Interest of I.M.S., __ A.3d
__, 2021 PA Super 248 (filed December 15, 2021). If counsel is unable to
comply with the most basic demands of our appellate rules, he should not
accept appointments to represent clients in such serious matters.
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6/15/21; Trial Court Opinion, 7/20/21. In light of counsel’s eventual
substantial compliance, the lack of prejudice, and the substantial rights at
stake, we decline to dismiss Mother’s appeals. See In re K.T.E.L., supra.We may now reach the merits of Mother’s issues on appeal, all of which
challenge the trial court’s finding that CYS met its burden to establish grounds
for termination under various subsections of §2511(a). We consider these
issues mindful of our well-settled standard of review. “In cases concerning
the involuntary termination of parental rights, appellate review is limited to a
determination of whether the decree of the termination court is supported by
competent evidence.” In re Adoption of C.M., supra, at 358.
When applying this standard, appellate courts must accept the trial
court’s findings of fact and credibility determinations if they are supported by
the record. Interest of S.K.L.R., 256 A.3d 1108, 1123 (Pa. 2021). “Where
the trial court’s factual findings are supported by the evidence, an appellate
court may not disturb the trial court’s ruling unless it has discerned an error
of law or abuse of discretion.” In re Adoption of L.A.K., ___ A.3d ___, 2021
WL 6071745, at *7 (Pa. filed December 23, 2021). “[A]n abuse of discretion
does not result merely because the reviewing court might have reached a
different conclusion” or “the facts could support an opposite result.” In re
Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012). Instead, an appellate
court may reverse for an abuse of discretion “only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id. at 826.
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This standard of review reflects the deference we pay to trial courts, who often
observe the parties first-hand across multiple hearings. Interest of S.K.L.R.,
supra, at 1123-24.
In considering a petition to terminate parental rights, a trial court must
balance the parent’s fundamental “right to make decisions concerning the
care, custody, and control” of his or her child with the “child’s essential needs
for a parent’s care, protection, and support.” In re Adoption of C.M., supra,
at 358. Termination of parental rights has “significant and permanent
consequences for both the parent and child.” In re Adoption of L.A.K.,
supra, at *7. As such, the law of this Commonwealth requires the moving
party to establish the statutory grounds by clear and convincing evidence,
which is evidence that is so “clear, direct, weighty, and convincing as to enable
a trier of fact to come to a clear conviction, without hesitance, of the truth of
the precise facts in issue.” In re Adoption of C.M., supra, at 359 (quoting
Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).
Termination of parental rights is governed by §2511 of the Adoption Act.
“Subsection (a) provides eleven enumerated grounds describing particular
conduct of a parent which would warrant involuntary termination[.]” In re
Adoption of C.M., supra, at 359; see also 23 Pa.C.S. § 2511(a)(1)-(11).
Under §2511(a), the trial court must focus on the parent’s conduct and not
use a “balancing or best interest approach” between the parent and other
caregivers “to determine whether the statutory prerequisites” are met.
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Interest of L.W., ___ A.3d ___, 2021 PA Super 247, at *5 n.6 (filed
December 15, 2021). If the trial court determines the petitioner established
grounds for termination under §2511(a) by clear and convincing evidence, the
court then must assess the petition under §2511(b). In re T.S.M., 71 A.3d
251, 267 (Pa. 2013). Under that subsection, the court “shall give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S. § 2511(b).
In this case, the trial court terminated Mother’s parental rights pursuant
to §2511(a)(1), (2), (5), (8), and (b). We need only agree with the trial court
as to any one subsection of §2511(a), as well as §2511(b), to affirm. In re
B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). We focus our analysis
on §2511(a)(8) and (b), which provide 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,
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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)(8), (b).
In order to satisfy §2511(a)(8), the petitioner must show three
components: (1) that the child has been removed from the care of the parent
for at least twelve months; (2) that the conditions which led to the removal
or placement of the child still exist; and (3) that termination of parental rights
would best serve the needs and welfare of the child. In re Adoption of
J.N.M., 177 A.3d 937, 943 (Pa.Super. 2018). This subsection does not require
the court to evaluate a parent’s willingness or ability to remedy the conditions
that led to the placement of the child. In re M.A.B., 166 A.3d 434, 446
(Pa.Super. 2017). In fact, the Adoption Act prohibits the court from
considering, as part of a §2511(a)(8) analysis, “any efforts by the parent to
remedy the conditions described [in the petition] which are first initiated
subsequent to the giving of notice of the filing of the petition.” 23 Pa.C.S.
§ 2511(b). “[T]he relevant inquiry” regarding the second prong “is whether
the conditions that led to removal have been remedied and thus whether
reunification of parent and child is imminent at the time of the hearing.” In
re I.J., 972 A.2d 5, 11 (Pa.Super. 2009).
This Court has recognized “that the application of [§2511](a)(8) may
seem harsh when the parent has begun to make progress toward resolving
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the problems that had led to the removal of her children.” In re Adoption
of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006).
However, by allowing for termination when the conditions that led
to removal of a child continue to exist after a year, the statute
implicitly recognizes that a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. The court 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, to wit eighteen . . . months, in which
to complete the process of either reunification or adoption for a
child who has been placed in foster care.
Id.With our standard of review and these guiding principles in mind, we
turn to Mother’s argument. Mother recognizes her role in creating the
conditions that underlie this case but she contends that she has progressed
toward rectifying these issues. Mother’s brief at 13, 15, 19. Specifically, she
cites her negative tests of illegal substances, her suitable housing without
roommates, and her steady attendance at drug and alcohol treatment up to
six days a week when she was not incarcerated. Id. She also emphasizes
her regular attendance at visits with D.R.N., C.A.F., and K.A.F. when she is
not in prison. Id.Nevertheless, Mother concedes “the family is not entirely prepared for
reunification” and “the conditions may still exist.” Id. at 17-18. Mother’s brief
is somewhat vague as to which conditions are still outstanding, but at one
point in her brief Mother posits that the only condition she did not eliminate
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was her pending criminal charges. Id. at 15. However, she argues the trial
court should not have considered those charges because she is presumed
innocent under the United States constitution until proven guilty. Id. at 15.
In defending its decision to terminate Mother’s parental rights under
§2511(a)(8), the trial court found that the conditions that led to the removal
and placement of the children continue to exist today. While Mother visited
D.R.N., C.A.F., and K.A.F., secured her own housing, and “made a concerted
effort to remedy her drug and alcohol issues by actively engaging in multiple
forms of treatment[,]” Mother remains on house arrest awaiting trial under
strict conditions from her federal parole officer. Trial Court Opinion, 7/20/21,
at 9, 10-11. For example, she cannot go into the community with D.R.N.,
C.A.F., and K.A.F. during visits unless her parole officer grants her permission.
Id. at 9. She has pending federal charges with an unknown trial date, followed
by separate pending state charges. Id. She is not employed despite her
ability to work part-time while on house arrest. Id. She only sees D.R.N.,
C.A.F., and K.A.F. for two hours a month at supervised visits. Id. She has
minimal involvement with the children’s medical needs, only attending
appointments that are arranged by CYS and the kinship caregivers “when she
could” based upon her house arrest and health issues. Id. at 8. She is not
involved with their education. Id.
In the trial court’s view, Mother’s limited time with D.R.N., C.A.F., and
K.A.F. means she is seeing them, not parenting them. Id. at 9. The trial
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court also emphasized Mother’s “likely incarceration” and her admission that
she did not think it was best for D.R.N., C.A.F., and K.A.F. for her to be in
their lives only to be removed again upon her incarceration. Id. at 10-11. In
the findings the trial court placed on the record after the hearing, it also noted
that Mother was “early on in recovery” and her “progress in our three review
hearings wasn’t ideal.” N.T., 4/19/21, at 202, 208-09.
In sum, the trial court determined that Mother “is willing to put in the
effort to make herself better for [the c]hildren,” but “she is not able to provide
for their daily needs and the reality of her current and pending criminal
charges serve as a major roadblock in her ability to be a meaningful parent to
[the c]hildren.” Trial Court Opinion, 7/20/21, at 11. Accordingly, the trial
court concluded “the conditions that led to the removal and placement of
Children continue to exist today.” Id. at 12.
There is no dispute D.R.N., C.A.F., and K.A.F. have been removed from
Mother’s care longer than the one-year period required by the first prong of
§2511(a)(8). Regarding the second requirement, the continued existence of
the conditions which led to the removal or placement, there is no doubt that
the trial court relied heavily on Mother’s unresolved legal troubles to find CYS
established grounds under §2511(a)(8). See Trial Court Opinion, 7/20/21, at
11-12. We agree with Mother that her pending criminal charges cannot serve
as proof that she in fact engaged in drug trafficking while D.R.N., C.A.F., and
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K.A.F. were in the home.7 However, the trial court focused on more than just
the alleged activities and their attendant dangers. It relied upon the current,
actual restrictions Mother faced in the criminal justice system, such as her
need for approval from her parole officer to see D.R.N., C.A.F., and K.A.F. at
CYS-supervised visits. Id. at 7-12. It also relied upon the potential
restrictions she might face upon a conviction, going as far as to find that
“Mother will likely receive a lengthy prison sentence.” Id. at 11.
We find In re C.B., 230 A.3d 341 (Pa.Super. 2020) to be instructive.
In that case, a child welfare agency removed a young infant following physical
abuse by her father and the failure of both parents to seek medical care. The
child’s mother was charged with crimes of omission based upon this failure.
Id. at 344. The agency moved to terminate the mother’s parental rights while
charges were still pending. Id. at 350. Following a hearing, the trial court
denied the petition, finding the agency failed to prove grounds to terminate
the mother’s rights under any of the subsections of §2511(a). Id. at 346.
The agency appealed. Relevant to our purposes, this Court examined
whether the trial court properly found the conditions which led to the child’s
____________________________________________
7 Nevertheless, the certified record is not devoid of evidence concerning
Mother’s suspicious activities. The caseworker testified without objection that
in September and October 2019, it was difficult for a CYS caseworker to get
into the house and there were “numerous individuals coming and going” and
“people with guns.” N.T., 4/19/21, at 34. Additionally, CYS introduced a
social media post from Mother’s Facebook account wherein she described
being addicted to “the money the drug made us” and that she “dealt to support
[her] kids.” Id. at CYS Ex. 26.
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removal had been resolved pursuant to §2511(a)(8). The specific reasons the
agency removed the child were the father’s admitted abuse and both parents’
failure to seek immediate medical attention for the child. Id. at 349. During
the child’s dependency, the mother completed a parenting program, engaged
in drug and alcohol treatment, and regularly visited with the child. Id. at 345.
Nevertheless, the agency insisted the mother’s housing conditions,
employment status, and contact with the father were of concern to the
agency. Id. at 351. The trial court found the agency did not introduce credible
evidence why these concerns supported termination of parental rights,
particularly because an agency caseworker admitted that if the mother’s
charges were resolved in her favor, the agency might consider reunification.
Id. This Court agreed with the trial court, noting that while such concerns
could support termination in general, they were not the factors that led to the
removal and placement of the child and therefore could not support the
analysis under §2511(a)(8). Id.
The only condition at issue, then, was the mother’s pending criminal
charges.8 The trial court found that the pending charges, alone, could not
support terminating the mother’s parental rights. Once again, this Court
agreed, holding “[e]vidence of a parent’s pending criminal charges, in itself,
____________________________________________
8 The charges were no longer pending by the time the record closed; the
mother pled guilty and received a sentence of two years’ probation. In re
C.B., 230 A.3d 341, 350 n.6 (Pa.Super. 2020).
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does not justify termination of parental rights under either Section 2511(a)(5)
or Section 2511(a)(8).” Id. at 352. Citing In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc) for the proposition that evidence of incarceration
alone is not enough to support termination of parental rights, this Court
concluded that neither is evidence of a pending charge. Id.This Court noted that “the record supports the trial court’s determination
that [the m]other complied with [the agency’s] requirements for reunification
and maintained a relationship with [the child], albeit constrained by fully
supervised visitation, during the pendency of her criminal charges.” Id. at
353. The agency failed to present evidence that the mother’s conduct would
reoccur or that the mother failed to take responsibility for the actions and
omissions that led to the charges. Id. (noting that adjudication of criminal
guilt is not necessary to assess such things). Therefore, this Court affirmed
the trial court’s denial of the termination petition.
Although it is instructive to the instant case, we conclude In re C.B.
does not require reversal. In In re C.B., once the trial court set aside later-
arising conditions from its analysis, it was faced with only one condition. This
Court declared the circumstances in In re C.B. to be unique because it viewed
that condition (i.e., the mother’s failure to obtain medical care for her child
after the father’s abuse) as “episodic” and comprised of “single occurrences .
. . that were not ongoing.” In re C.B., supra, at 351 n.8.
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In the instant case, however, “the conditions which led to the removal
or placement of the child” are not confined to one isolated incident. This Court
has interpreted the phrase the “conditions which led to the removal or
placement of the child” in §2511(a)(8) in a broad fashion. See In re C.L.G.,
956 A.2d 999, 1006 (Pa.Super. 2008) (en banc) (holding conditions continued
to exist because drug-related criminal conviction and incarceration were
derived from “drug issues,” regardless of whether the parent was still using
drugs). While the specific event that caused removal was Mother’s
incarceration, the conditions leading to the removal involved her “drug usage,
interaction [with] others using methamphetamine, the neglect that befell the
boys because . . . their parents were more focused on the methamphetamine
than the health, safety[,] and welfare of the boys.” N.T., 4/19/21, at 207-08.
Regarding Mother’s drug use, the trial court found, and the record
supports, that Mother’s progress with resolving her addiction largely came
after she received notice of the filing of the termination of parental rights
petition. N.T., 4/19/21, at 209-10. At the first permanency review hearing,
the trial court found Mother had made no progress because Mother admitted
that police found marijuana in her home and she had not obtained a drug and
alcohol evaluation or treatment. Id. at 209-10, CYS Ex. 7. During the second
review hearing, the trial court found she made minimal progress, as she still
was not in drug and alcohol treatment and was living with G.A.F. alongside
random people involved in her drug-related criminal cases. Id. Mother did
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not obtain an evaluation until August 2020, almost a full year after CYS
removed D.R.N., C.A.F., and K.A.F. from her care. Id. At the time CYS filed
the termination petition, she had not begun actual treatment; she only began
treatment in October 2021. Id. Mother’s drug screens were mostly negative,
but all came under the supervision of incarceration or parole. Id.
Given her late progress and longstanding addiction, we discern no abuse
of discretion in the trial court’s recognition that the bulk of her progress came
after the petition was filed. In addition to her pending criminal charges, it
remains to be seen whether she will be able to maintain her sobriety long-
term. In short, reunification was not imminent. In re I.J., supra, at 5.
Moreover, the Adoption Act expressly directs the trial court not to consider
any efforts to remedy the conditions relevant to this subsection which are first
initiated after notice of the filing of the petition. 23 Pa.C.S. § 2511(b); In re
Adoption of C.J.P., 114 A.3d 1046, 1053 (Pa.Super. 2015) (holding the trial
court properly did not consider a parent’s resumption of addiction treatment
after she received notice of the petition).
The third part of the §2511(a)(8) analysis is whether “termination of
parental rights would best serve the needs and welfare of the child.” 23
Pa.C.S. § 2511(a)(8). “Thus, the analysis under Section 2511(a)(8) accounts
for the needs of the child in addition to the behavior of the parent.” In re
D.A.T., 91 A.3d 197, 205 (Pa.Super. 2014). The analysis under the third part
of §2511(a)(8) is similar to §2511(b), but because of its placement in
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§2511(a), they are distinct analyses. See In re C.L.G., supra, at 1009
(“[W]e are required to resolve the analysis relative to Section 2511(a)(8),
prior to addressing the ‘needs and welfare’ of [the child], as proscribed by
Section 2511(b)[.]”).
Regarding the third prong of §2511(a)(8), Mother argues that
termination does not meet D.R.N., C.A.F., and K.A.F.’s needs and welfare.
She criticizes CYS for considering placing D.R.N. with a caregiver across the
country, asserting that despite D.R.N.’s assertions and preference, the
caregiver is not really D.R.N.’s godmother and it would “tear” him away from
his siblings. Mother’s brief at 18-19. She also focuses on what she argues is
a “strong bond” between her and D.R.N., C.A.F., and K.A.F. based on their
“regular, appropriate, productive contact.” Id.
As to Mother’s argument concerning the potential of placing D.R.N. with
a caregiver far away, thereby geographically separating the siblings, we
observe that this Court has held previously that a termination hearing is not
“the proper stage to inquire into the best adoptive alternative” for a child. In
re Adoption of G.R.L., 26 A.3d 1124, 1130 (Pa.Super. 2011). Once grounds
are satisfied, the purpose of a needs and welfare inquiry is to determine
whether termination of parental rights serves a child’s needs and welfare, not
to resolve which specific adoptive resource may adopt the child. See id.(affirming decree terminating parental rights despite parents’ arguments that
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the children’s grandfather could care for the children in lieu of foster care or
adopt the children).
As to Mother’s argument regarding the bond she shares with D.R.N.,
C.A.F., and K.A.F., the trial court found she shares a bond with D.R.N., C.A.F.,
and K.A.F. and they are happy to see Mother and are comfortable with her at
visits. N.T., 4/19/21, at 211; Trial Court Opinion, 7/20/21, at 11-13. The
trial court expressed it had no doubt that D.R.N., C.A.F., and K.A.F. love
Mother and enjoy spending time with her. N.T., 4/19/21, at 211; Trial Court
Opinion, 7/20/21, at 11-13. Nevertheless, it found that the two hours per
month D.R.N., C.A.F., and K.A.F. spend with her “do not make up for the
uncertainty that [the c]hildren are presently facing” with Mother’s
circumstances. Trial Court Opinion, 7/20/21, at 13. The court noted that as
a result of Mother’s conduct during her time parenting D.R.N., C.A.F., and
K.A.F., the children did not experience a sense of security or permanency.
N.T., 4/19/21, at 211; Trial Court Opinion, 7/20/21, at 11-13. Now in care,
finally the children’s medical, dental, and educational needs have been met
consistently. N.T., 4/19/21, at 211; Trial Court Opinion, 7/20/21, at 11-13.
The court determined D.R.N., C.A.F., and K.A.F. have changed in the
nineteen months they have been out of Mother’s care. N.T., 4/19/21, at 201.
K.A.F. and C.A.F. have bonded with their paternal aunt and uncle and rely on
them to meet their needs. Id. at 51-52, 201. The trial court acknowledged
D.R.N., C.A.F., and K.A.F. would experience harm by terminating Mother’s
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parental rights but concluded that such harm “would be outweighed by
permanency with caring, sober, consistent parents.” Id. at 213. The court
noted that D.R.N. was not in a pre-adoptive home and had some behavioral
issues that could make finding an appropriate home more of a challenge, but
the trial court concluded it was a likely outcome for D.R.N., whether it was
with his godmother or another option. Id. at 215. Given all of the “question
marks,” the trial court concluded prioritizing the safety and security needs of
D.R.N., C.A.F., and K.A.F. over the disruption of their bond with Mother was
“of more importance at this crucial time in their young lives.” Id.; Trial Court
Opinion, 7/20/21, at 13.
We discern no abuse of discretion in the trial court’s findings and
conclusion. They are supported by the record. Additionally, Mother conceded
she did not think it was “best” for D.R.N., C.A.F., and K.A.F. to return to her
care at the time of the termination hearing based on the uncertainty of
whether she would be removed from their lives again upon conviction and
incarceration. N.T., 4/19/21, at 125. She planned to place them with her
family if she was incarcerated and wished to be an “active part” of their lives.
Id. at 121, 125.
We find no abuse of discretion in the trial court’s decision to prioritize
establishing security and stability for D.R.N., C.A.F., and K.A.F., both in an
emotional sense and a practical sense of their development, health, and
education, over prioritizing their bond with Mother, which has been maintained
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not through daily care but through short, supervised visits. The court noted
that what best serves the needs and welfare of D.R.N., C.A.F., and K.A.F. is a
difficult task because no one has a “crystal ball.” N.T., 4/19/21, at 215.
However, because the trial court’s findings and conclusions are supported by
the record, we defer to the trial court’s decision and conclude it properly found
that CYS met its burden under all three portions of §2511(a)(8).
Once the trial court has determined that the petitioner met its burden
under §2511(a), it then must shift its focus to the child. T.S.M., supra, at
628. To that end, the Adoption Act provides that the court “shall give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S.§ 2511(b). “The emotional needs and welfare of the
child have been properly interpreted to include intangibles such as love,
comfort, security, and stability.” T.S.M., supra, at 628 (citation and
quotation marks omitted). Our Supreme Court has made clear that §2511(b)
requires the trial court to consider the nature and status of the bond between
a parent and a child. In re E.M., 620 A.2d 481, 484-85 (Pa. 1993). Existence
of a bond does not necessarily result in denial of a termination petition, but
the court must examine the effect on the child of severing such a bon. T.S.M.,
supra, at 628. “When examining the effect upon a child of severing a bond,
courts must examine whether termination of parental rights will destroy a
‘necessary and beneficial relationship,’ thereby causing a child to suffer
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‘extreme emotional consequences.’” In re Adoption of J.N.M., supra, at
944 (quoting E.M., supra, at 484-85).
“While a parent’s emotional bond with his or her child is a major aspect
of the Subsection 2511(b) best-interest analysis, it is nonetheless only one of
many factors to be considered by the court when determining what is in the
best interest of the child.” In re M.M., 106 A.3d 114, 118 (Pa.Super. 2014).
“In addition to a bond examination, the trial court can equally emphasize the
safety needs of the child, and should also consider the intangibles, such as
the love, comfort, security, and stability the child might have with the foster
parent.” Id. In determining needs and welfare, the court may properly
consider the effect of the parent’s conduct upon the child and consider
“whether a parent is capable of providing for a child’s safety and security or
whether such needs can be better met by terminating a parent’s parental
rights.” Interest of L.W., supra, at *5.
Mother failed to raise any challenge relating to §2511(b) in her concise
statement or in the statement of questions involved in her. Therefore, she
has waived any claim pursuant to that subsection. See In re M.Z.T.M.W.,
163 A.3d 462, 466 (Pa.Super. 2017) (“[I]t is well-settled that issues not
included in an appellant’s statement of questions involved and concise
statement of errors complained of on appeal are waived.”). Even if she did
raise such a claim, we would affirm the trial court’s determination that CYS
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met its burden of establishing termination under §2511(b) for the same
reasons as discussed supra regarding the third prong of §2511(a)(8).
Accordingly, based on the foregoing, we affirm the decree terminating
Mother’s parental rights to D.R.N., C.A.F., and K.A.F.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
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