In Re: E.J.M., Appeal of: C.E.A., mother ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.J.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.E.A., MOTHER : No. 1182 WDA 2015
Appeal from the Decree entered June 25, 2015,
in the Court of Common Pleas of Jefferson County,
Orphans’ Court, at No(s): 19A-2014 O.C.
IN RE: A.F.M., III : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.E.A., MOTHER : No. 1183 WDA 2015
Appeal from the Decree entered June 25, 2015,
in the Court of Common Pleas of Jefferson County,
Orphans’ Court, at No(s): 18A-2014 O.C.
BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 17, 2015
C.E.A. (Mother) appeals from the decree entered June 25, 2015, in the
Court of Common Pleas of Jefferson County, which terminated involuntarily
her parental rights to her minor sons, E.J.M. (born in March of 2014) and
A.F.M., III (born in February of 2013) (collectively, the Children).1 We
affirm.
* Senior Judge assigned to the Superior Court.
1
The Children’s father, A.F.M., Jr. (Father), relinquished his parental rights
voluntarily on December 16, 2014. Father is not a party to the instant
appeal.
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The Children were placed in foster care on April 15, 2014, as a result
of Mother’s impending incarceration.2 N.T., 6/10/2015, at 7, 21.
Additionally, Jefferson County Children and Youth Services (CYS) had
concerns with respect to the condition of Mother’s home, Mother’s failure to
seek appropriate medical care for the Children, and “some minor neglect
issues,” like providing the Children with inappropriate food. Id. at 7-8, 21.
The Children were adjudicated dependent on April 30, 2014. Id. at 7-8.
Aggravated circumstances were found, due to the fact that Mother’s parental
rights previously had been terminated as to four of her other children. Id.
at 10; Exhibit 3. On October 29, 2014, the Children’s permanency goals
were changed to adoption. Id. at 17.
On March 25, 2015, CYS filed petitions to terminate Mother’s parental
rights to the Children involuntarily. A termination hearing was held on June
10, 2015. On June 25, 2015, the orphans’ court entered its decree
terminating Mother’s parental rights. Mother timely filed notices of appeal,
along with concise statements of errors complained of on appeal.
Mother now raises the following issues for our review.
[1.] Whether the [orphans’] court committed an error of law as
the clear and positive evidence was insufficient to terminate the
rights of the mother[?]
2
Mother was incarcerated as a result of a probation violation. N.T.,
6/10/2015, at 32. Her minimum release date was in October of 2015. Id.
at 23.
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[2.] Whether the [orphans’] court’s finding that termination was
in the best interest of the [C]hildren was against the weight of
the evidence as CYS failed to articulate specific dangers to the
[C]hildren prior to the mother’s incarceration, and [M]other had
been told by her caseworker that she was “doing well” in caring
for the [C]hildren[?]
[3.] Whether the [orphans’] court erred by [sic] as a matter of
law in finding that [M]other failed to maintain contact with the
[C]hildren by not requesting visitation while incarcerated, when
[M]other had been told specifically by her caseworker that such
a request would be denied[?]
[4.] Whether the [orphans’] court erred in failing to give
sufficient weight to the evidence that CYS did not have a safety
plan in place, and that CYS was not considering removing the
[C]hildren from the home until the mother was incarcerated[?]
Mother’s brief at 4 (suggested answers omitted).
Mother argues that CYS failed to present clear and convincing evidence
that her parental rights should be terminated. Id. at 8-14. Mother asserts,
inter alia, that she was the Children’s primary caregiver prior to her
incarceration, and that CYS did not offer evidence of any “specific dangers”
to the Children while they were residing with her. Id. at 8, 10, 12. Mother
also contends that she did not request visits with the Children while
incarcerated because a CYS caseworker told her that visits would not be
permitted, but that she has been using “what resources she had in
attempting to maintain contact with her infant sons….” Id. at 8, 11-12.
We consider Mother’s claims mindful of our well-settled standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
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credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to Sections 2511(a)(1), (8), and (b). We need only agree with the
orphans’ court as to any one subsection of Section 2511(a), as well as
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Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here,
we analyze the court’s decision to terminate under Sections 2511(a)(1) 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:
(1) The 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.
***
(b) Other considerations.―The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall
not consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(1), (b).
We first address whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(1). To
meet the requirements of this section, “the moving party must produce clear
and convincing evidence of conduct, sustained for at least the six months
prior to the filing of the termination petition, which reveals a settled intent to
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relinquish parental claim to a child or a refusal or failure to perform parental
duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re
Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The court must
then consider “the parent’s explanation for his or her conduct” and “the
post-abandonment contact between parent and child” before moving on to
analyze Section 2511(b). Id. (quoting In re Adoption of Charles E.D.M.,
708 A.2d 88, 92 (Pa. 1998)).
This Court has explained that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development
of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832 A.2d 457, 462
(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)). Rather,
“[p]arental duty requires that the parent act affirmatively with good faith
interest and effort, and not yield to every problem, in order to maintain the
parent-child relationship to the best of his or her ability, even in difficult
circumstances.” Id. (citation omitted). Critically, incarceration does not
relieve a parent of the obligation to perform parental duties. An
incarcerated parent must “utilize available resources to continue a
relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,
828 (Pa. 2012) (discussing In re Adoption of McCray, 331 A.2d 652 (Pa.
1975)).
Instantly, the orphans’ court found that Mother failed to perform
parental duties for more than six months prior to the filing of the termination
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petition. Orphans’ Court Opinion, 6/25/2015, at 4-5. The court reasoned
that Mother did not request visits with the Children after being incarcerated,
and that Mother only wrote to the Children twice. Id. at 5.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion. During the termination
hearing, CYS caseworker, Natalie Young, testified that Mother sent two cards
to the Children since being incarcerated in April of 2014. N.T., 6/10/2015,
at 12. The first card was sent in December of 2014, and the second card
was sent during the end of March or beginning of April of 2015. Id. To the
knowledge of Ms. Young, Mother made no other efforts at contacting the
Children. Id. at 14-15, 17-18, 27. Mother did not request visits with the
Children. Id. at 15. Mother called CYS on an unspecified number of
occasions, and left voicemails requesting return calls. Id. at 14. However,
these calls were made only recently, within “the last two weeks.” Id. Ms.
Young noted that Mother has been participating in various services while
incarcerated, but that she had not yet started or completed a parenting
program. Id. at 12-13.
Mother testified that she sent “six to eight” cards for the Children to
CYS since being incarcerated. Id. at 33, 40. Mother also reported that her
mother remains in contact with the Children’s foster mother, and that her
mother tells her how the Children are doing. Id. at 33-34. Mother admitted
that she did not request visitation with the Children, but claimed that her
prior CYS caseworker told her that visitation would not be permitted. Id. at
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34. Mother stated that she has called CYS on multiple occasions, and talked
about “[c]ourt hearings and stuff,” and that she completed a parenting
program while incarcerated, inter alia. Id. at 32, 34, 38-39.
Thus, the record supports the finding of the orphans’ court that Mother
refused or failed to perform parental duties for a period of at least six
months prior to the filing of the petitions to terminate her parental rights on
March 25, 2015. The orphans’ court was free to reject Mother’s testimony
that she sent six to eight cards to the Children during her incarceration, and
to conclude that Mother wrote to the Children only twice. Moreover, Mother
did not request visits. Mother’s minimal effort at maintaining contact with
the Children is not sufficient to preserve her parental rights. She is not
entitled to relief.
We next consider whether the orphans’ court abused its discretion by
terminating Mother’s parental rights under Section 2511(b). We have
discussed our analysis under Section 2511(b) as follows.
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases 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). Accordingly, the extent of the bond-effect analysis
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necessarily depends on the circumstances of the particular case.
Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Here, the orphans’ court concluded that terminating Mother’s parental
rights would best serve the needs and welfare of the Children. Orphans’
Court Opinion, 6/25/2015, at 6. The court emphasized that the Children are
bonded with their foster parents, and that they likely have little, if any,
recollection of Mother. Id.
We again conclude that the orphans’ court did not abuse its discretion.
Ms. Young testified that the Children have resided with their pre-adoptive
foster parents since being removed from Mother on April 15, 2014. N.T.,
6/10/2015, at 7, 15, 17. The Children are bonded with their foster parents,
and are thriving in their care. Id. at 17, 26. Ms. Young recounted that she
visited the Children at their foster home the day before the termination
hearing. Id. at 16. During the visit, Ms. Young observed E.J.M. refer to the
foster father as “Daddy,” and A.F.M., III, referred to the foster mother as
“Mom” or “Mommy.” Id. at 16-17, 27. Ms. Young opined that the Children’s
best interest would be served by terminating Mother’s parental rights, so
that they can be adopted by their foster parents. Id. at 20.
Thus, the record supports the conclusion of the orphans’ court that it
would best serve the Children’s needs and welfare to terminate Mother’s
parental rights. At the time the Children were removed from Mother’s care,
A.F.M., III, was about fourteen months old, while E.J.M. was about a month
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and a half old. Mother has had minimal contact with the Children since her
incarceration, and there is no evidence to suggest that the Children are
bonded with Mother. In contrast, the Children are bonded with their pre-
adoptive foster parents. Adoption will allow the Children to remain in the
care of their foster parents, where they are thriving. Allowing Mother to
preserve her parental rights would deny the Children the opportunity for
permanence and stability. No relief is due.
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by terminating Mother’s parental rights to the Children
involuntarily, we affirm the decree of the orphans’ court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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