In the Interest of: A.D., III, a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.D., III, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.M., MOTHER :
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: No. 1476 EDA 2016
Appeal from the Order Entered April 12, 2016
In the Court of Common Pleas of Monroe County
Orphans’ Court at No(s): 8 OCA 2016
IN THE INTEREST OF: T.M., MINOR : IN THE SUPERIOR COURT OF
CHILD : PENNSYLVANIA
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APPEAL OF: C.M., MOTHER :
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: No. 1479 EDA 2016
Appeal from the Order Entered April 12, 2016
In the Court of Common Pleas of Monroe County
Orphans’ Court at No(s): 9 OCA 2016
BEFORE: MOULTON, RANSOM, and FITZGERALD*, JJ.
MEMORANDUM BY MOULTON, J.: FILED MARCH 02, 2017
C.M. (“Mother”) appeals from the orders entered April 12, 2016, in the
Monroe County Court of Common Pleas by the Honorable Jonathan Mark,
which involuntarily terminated her parental rights to her minor children,
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*
Former Justice specially assigned to the Superior Court.
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A.D., III, born in February 2011, and T.M., born in January 2014,
(collectively, “the Children”) pursuant to the Adoption Act, 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b).1 We affirm.
The trial court set forth the following factual and procedural history:
The Children first came to the attention of Monroe
County Children and Youth Services (“CYS” or “the
Agency”) on July 8, 2014 when the Agency received a
referral that A.D. III had been left alone in a cabin with his
half-brother and cousin. It was also reported that A.D. III
and his half-brother and cousin had not bathed in days and
their only source of food was uncooked hotdogs provided
by neighbors. Later that evening, Mother returned with
T.M. and provided a urine screen that tested positive for
heroin. As a result, the Children were taken into
Emergency Protective Custody. They have been in care
ever since.
On July 21, 2014, the Children were adjudicated
dependent. The Children’s placements were reviewed and
their dependency continued by orders of Court dated
November 14, 2014, February 11, 2015, May 14, 2015,
August 13, 2015, and November 2, 2015. At the November
2, 2015 review hearing, the permanency goal for both of
the Children was changed to Adoption. Mother did not
appeal the goal change.
On February 29, 2016, CYS filed petitions seeking
termination of both parents’ parental rights to the
Children. On March 18, 2016, the petition was served on
Mother. A termination of parental rights hearing (“TPR
hearing”) on the petitions was held on April 11, 2016.2 One
CYS caseworker and [M.M.] (“Maternal Aunt”) testified.
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1
The trial court terminated the parental rights of A.D. (“Father”) on
the same date. Father has not filed an appeal from the orders terminating
his parental rights, nor is he a party to the instant appeal.
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CYS introduced twenty exhibits, and Mother introduced
none.
The record in the dependency proceeding and the
evidence at the TPR hearing demonstrated that, despite
efforts by CYS, Mother did not satisfy any of her plan
goals. Among other things, Mother was required to provide
drug screens three times per week. However, she was not
consistent. She provided screens only when she came to
visit the Children, which visits were sporadic at first and
then non-existent as the case moved forward. Mother
tested positive for heroin on every drug screen. N.T. 04/1
1/2016, p. 43. In addition, Mother was supposed to attend
parenting classes and undergo a drug and alcohol
evaluation. She did neither. Further, Mother was to obtain
suitable housing and employment or means of income. She
never obtained stable housing or provided proof of
employment. Finally, Mother’s visitation with the Children
was initially inconsistent. Sadly, it became non-existent.
Mother has not visited, contacted or attempted to see the
Children since her last visit on April 22, 2015.
2
The hearing was also convened as a permanency
review hearing.
During the course of the dependency proceedings,
Mother was arrested and incarcerated on several
occasions. Specifically, Mother was charged with
Endangering the Welfare of a Child from the event that
initiated CYS’s involvement with the Children. In
September of 2014, Mother was arrested in New Jersey
after she was found with drug paraphernalia in her shoe.
In January 2015, Mother was arrested on prostitution
charges in Monroe County. She was jailed at Monroe
County Correctional Facility from March 16, 2015 to April
7, 2015 on several outstanding warrants. Mother was also
incarcerated in Monroe County at the time of the goal
change hearing in November 2015. Finally, on February
29, 2016, Mother was sentenced to the State Intermediate
Punishment Program, a 24-month program run by the
Department of Corrections, that includes 7 to 9 months of
inpatient substance abuse treatment in a State
Correctional Facility followed by various levels of additional
supervised treatment outside prison walls.
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In contrast to Mother, the Children are doing well. They
have lived in their most recent foster home since
September of 2015. At the TPR hearing, Kristine Weber, a
caseworker for CYS, testified that the Children are doing
well in their current placement and have services in place.
The Children are happy and give hugs and kisses to their
foster parents. In addition, the foster parents have the
Children involved in karate and help them play educational
games on the computer. Moreover, the foster parents are
willing to provide a permanent home for the Children so
they can grow up together as brothers.
During the TPR hearing, Mother’s attorney focused on
CYS’s effort in making Maternal Aunt, who has five children
of her own, or her mother, [D.M.] (“Maternal
Grandmother”), a resource for the Children, and
questioned Weber as to why New York denied the
Interstate Compact on the Placement of Children (“ICPC”)
request submitted by the Agency for both family members.
Mother called only one witness, Maternal Aunt, who
testified to the events surrounding New York’s denial of the
ICPC and expressed a desire to adopt the Children. No
evidence of a bond between Mother and the Children was
presented. In fact, when discussing Mother, Maternal Aunt
testified that she has had no recent contact with Mother
and that she, not Mother, had always been the one
primarily responsible for taking care of the Children. There
was no testimony from Mother who was present by video
conferencing.
At the end of the TPR hearing, Mother’s attorney argued
that Mother loves the Children and had not seen them in a
long period of time because a non-monetary condition of
her bail on the Endangering charges prevented her from
having contact with them. However, the evidence
demonstrated that, after bail was set in the Endangering
case, Mother was permitted to see the Children despite the
bail condition. In fact, she did visit with them, albeit
sporadically, after bail was set.
Opinion Pursuant to Pa.R.A.P. 1925(a), filed 6/3/16, at 1-5 (“1925(a) Op.”).
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On April 12, 2016, the trial court entered orders terminating Mother’s
parental rights to the Children pursuant to Pa.C.S. § 2511(a)(1), (2), (5),
(8), and (b). On May 10, 2016, Mother timely filed notices of appeal.2
Mother raises two questions on appeal:
1. Did Children and Youth fail to present clear and
convincing evidence that termination of mother’s parental
rights served the emotional needs and welfare of her sons,
T.M. and A.D. where the boys had able capable and
appropriate grandmother and aunt providing love care and
support during mother’s incarceration which incarceration
was/is of brief duration?
2. Did trial court err in terminating her parental rights
without clear and convincing evidence that termination
best served T.M.’s and A.D.’s emotional needs and
welfare?
Mother’s Br. at 9.
Taken together, Mother’s issues on appeal challenge the propriety of
the termination. Mother maintains that she was due to complete the State
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2
Mother initially failed to file concise statements of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In light of this
defect in the notices of appeal, the trial court on May 12, 2016 ordered
Mother to file a Pa.R.A.P. 1925(b) statement within ten days of the date of
the order. Mother timely complied with the order, filing the Pa.R.A.P.
1925(b) statement on May 19, 2016. See In re K.T.E.L., 983 A.2d 745,
747 (Pa.Super. 2009) (failure to file 1925(b) contemporaneously with
children’s fast track appeal is considered defective notice of appeal and will
not be dismissed since failure to file statement is violation of procedural rule,
not an order of court); Cf. J.P. v. S.P., 991 A.2d 904, 908 (Pa.Super. 2010)
(failure to file 1925(b) statement of errors complained of on appeal, when
ordered by trial court, will result in waiver of all issues on appeal).
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Intermediate Punishment Program in October 2017, and would be available
to perform parental duties upon her release. Mother’s Br. at 17-18. Mother
argues that incarceration is not conclusive of abandonment, and that
Mother’s incarceration is only for a short and finite period of time. Id. at 13,
20. She further argues that CYS failed to establish that termination was
proper because Children’s aunt and grandmother were available to care for
Children while Mother was incarcerated. Id. at 18. Mother continues that
there was “simply no evidence” presented at trial that demonstrated
whether the emotional needs and welfare of the Children would be
negatively impacted by terminating Mother’s rights. Id. at 13, 22. We
disagree.
We consider Mother’s issues 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 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) (alteration in original).
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The Pennsylvania Supreme Court has explained the reason for
applying an abuse of discretion to termination decisions:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is
often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the
trial court and impose its own credibility determinations
and judgment; instead we must defer to the trial judges so
long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citation
omitted).
This Court need only agree with any one subsection of section
2511(a), along with section 2511(b), in order to affirm the termination of
parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc). We conclude that the trial court in this case properly terminated
Mother’s parental rights pursuant to sections 2511(a)(2) 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:
...
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being and the conditions and causes of the
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incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
...
(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)(2), (b).
To terminate parental rights pursuant to section 2511(a)(2), the
moving party must produce clear and convincing evidence regarding the
following elements: “(1) repeated and continued incapacity, abuse, neglect
or refusal; (2) such incapacity, abuse, neglect or refusal has caused the child
to be without essential parental care, control or subsistence necessary for
his physical or mental well-being; and (3) the causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied.” See In re
Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003).
Our Supreme Court has instructed:
incarceration is a factor, and indeed can be a
determinative factor, in a court’s conclusion that grounds
for termination exist under § 2511(a)(2) where the
repeated and continued incapacity of a parent due to
incarceration has caused the child to be without essential
parental care, control or subsistence and . . . the causes of
the incapacity cannot or will not be remedied.
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In re Adoption of S.P., 47 A.3d at 828. Further, the Supreme Court
stated:
[T]he length of the remaining confinement can be
considered as highly relevant to whether “the conditions
and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent,” sufficient to
provide grounds for termination pursuant to 23 Pa.C.S. §
2511(a)(2). [In re E.A.P., 944 A.2d 79, 85 (Pa.Super.
2008)] (holding termination under § 2511(a)(2) supported
by mother's repeated incarcerations and failure to be
present for child, which caused child to be without
essential care and subsistence for most of her life and
which cannot be remedied despite mother's compliance
with various prison programs).
Id. at 830 (some internal citations omitted).3
We find the following portion of the trial court’s opinion relevant to our
inquiry concerning Section 2511(a)(2):
[W]e found that the statutory grounds for termination of
Mother’s parental rights had been established by clear and
convincing evidence, and further, that termination of her
rights best served the needs and welfare of the Children.
Prompted by Mother’s appeal, we have again carefully
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3
In addition,
If a court finds grounds for termination under subsection
(a)(2), a court must determine whether termination is in
the best interests of the child, considering the
developmental, physical, and emotional needs and welfare
of the child pursuant to § 2511(b). In this regard, trial
courts must carefully review the individual circumstances
for every child to determine, inter alia, how a parent’s
incarceration will factor into an assessment of the child’s
best interest.
In Re Adoption of S.P., 47 A.3d at 830-31.
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reviewed the record and remain convinced that our
decisions are supported by both the facts and the law, and,
moreover, fulfilled and advanced the best interest of the
Children.
As of the termination hearing, CYS had been involved with
this family for more than seventeen months. Both before
and after the Children were adjudicated dependent and
placed in foster care, Mother consistently demonstrated a
lack of capacity to perform parental duties for the Children.
Maternal Aunt testified that she, not Mother, took care of
the Children before the July 2014 incident. No evidence
was presented to refute the Aunt’s testimony. Moreover,
despite the provision of services by CYS, Mother
demonstrated an inability to remedy the conditions which
caused the Children to be placed or to satisfy service plan
goals. In this regard, Mother has consistently been unable
to obtain and maintain either suitable housing or
employment and is incarcerated. She continued to test
positive for heroin. Further, since being placed in
September 2015, the foster parents, rather than Mother,
have provided nurturing and care for the Children and
have insured that their physical, mental, emotional,
medical, developmental, and daily needs have been met.
Finally, Mother has not visited or contacted the Children
since April 2015. Under these circumstances and the
evidence presented at hearing, it was clear to us that CYS
had established grounds for termination of Mother’s
parental rights to the Children under subsections
2511(a)(1), (2), (5), and (8).
1925(a) Op. at 22-23.
CYS caseworker Kristine Weber testified that the Children have been
dependent for almost two years at the time of the hearing. N.T., 4/11/16,
at 10. Ms. Weber further testified that Mother tested positive for heroin
every time she came to visit the Children, id. at 43, and that Mother had not
visited the Children since April 22, 2015, id. at 22. Ms. Weber avers that
Mother has not made any attempt to stay in contact with the Children while
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she has been in prison except a letter addressed to the trial court judge,
which was received on March 21, 2016. Id. at 36, 46.
Mother argues she was unable to perform her parental duties due to
her incarceration, and that Maternal Grandmother and Maternal Aunt were
able to provide nurturing care for the Children during Mother’s temporary
incarceration. This Court has held that incarceration can be a determinative
factor where the incarcerated parent’s repeated and continued incapacity
leaves a child without essential care. In re Adoption of S.P., 47 A.3d at
830. Mother’s incarceration, when taken together with Mother’s continued
positive urine screens for heroin and her failure to maintain contact with the
Children while the Children were in foster care, demonstrates a repeated and
continued incapacity, abuse, neglect or refusal on Mother’s part which has
caused the Children to be without essential parental care pursuant to section
2511(a)(2).4
We conclude that the record supports the trial court’s credibility and
weight determinations, and it did not abuse its discretion when it terminated
Mother’s parental rights pursuant to section 2511(a)(2). See In re M.G.,
855 A.2d 68, 73-74 (Pa.Super. 2004).
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4
Further, CYS explored the possibility of kinship care with both
maternal Grandmother and maternal aunt through requests pursuant to the
Interstate Compact on the Placement of Children (“ICPC”). N.T., 4/11/16,
11-12, 20-29. The ICPC requests were denied due to concerns with the
placements. Id. at 18, 29.
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The trial court must also consider how terminating Mother’s parental
rights would affect the needs and welfare of the Children pursuant to 23
Pa.C.S. § 2511(b). The focus in terminating parental rights under section
2511(b) is not on the parent, but on the child. In re Adoption of C.L.G.,
956 A.2d 999, 1008 (Pa.Super. 2008) (en banc). Pursuant to section
2511(b), the trial court must determine “whether termination of parental
rights would best serve the developmental, physical and emotional needs
and welfare of the child.” See In re C.M.S., 884 A.2d 1284, 1286
(Pa.Super. 2005). “When conducting a bonding analysis, the court is not
required to use expert testimony.” In re Z.P., 994 A.2d 1108, 1121
(Pa.Super. 2010). Further, “[a] parent’s own feelings of love and affection
for a child, alone,” will not preclude termination of parental rights. Id. As
this Court stated, “a child’s life ‘simply cannot be put on hold in the hope
that [a parent] will summon the ability to handle the responsibilities of
parenting.’” In re Z.S.W., 946 A.2d 726, 732 (Pa.Super. 2008) (quoting In
re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa.Super.2003)). Rather, “a
parent’s basic constitutional right to the custody and rearing of his 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).
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This Court has explained that, “[i]ntangibles such as love, comfort,
security, and stability are involved in the inquiry into the needs and welfare
of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005).
Further, 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. (citation omitted). However, “[i]n
cases where there is no evidence of any bond between the parent and child,
it is reasonable to infer that no bond exists. The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the
particular case.” In re K.Z.S., 946 A.2d 753, 762-763 (Pa.Super. 2008)
(citation omitted).
Ms. Weber testified that she observed the Children in the foster
placement, and described the Children as “very bubbly” and that they are
“always happy.” N.T., 4/11/16, at 37. Ms. Weber continued that the
Children go to their foster mother with any issues or concerns. Id. at 38.
Ms. Weber stated that, while the Children do still talk about their biological
family, the Children are connected to their foster parents. Id. Ms. Weber
further testified that the Children appear bonded to their foster parents, and
display affection for their foster parents by hugging and kissing their foster
parents. Id. at 48.
With regard to the Children’s bond with Mother, the trial court stated
that it “was just as clear to us that the best interests and welfare of the
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Children required that Mother’s parental rights be terminated.” 1925(a) Op.
at 23. The trial court continued, “[a]t the hearing, Mother’s attorney
expressed that Mother loved the Children and did not want to give up
parental rights.” Id. The trial court concluded:
Under these facts, we found that whatever bond exists
between Mother and the Children is neither as strong nor
as enduring and nurturing as the bond that exists between
the Children and foster parents. Consistently, we found
that severing parental ties with Mother would not harm the
Children mentally, emotionally, or spiritually, while
breaking the bond with the foster parents, who have been
their parents, would do them significant harm.
Simply, under the facts and circumstances of this case, we
found that termination of Mother’s parental rights would
best serve the developmental, physical, and emotional
needs and welfare of the Children and promote their best
interests.
Id. at 25.
The record supports the trial court’s conclusion. The Children have a
strong, enduring bond with foster parents, which would cause the Children
significant harm if the bond were broken. Mother has made no attempt to
contact the Children since April of 2015. We find that the competent
evidence in the record supports the trial court’s determination that there was
no bond between Mother and the Children which, if severed, would be
detrimental to the Children, and that the termination of Mother’s parental
rights would best serve the needs and welfare of the Children. Thus, we will
not disturb the trial court’s determinations. See In re M.G., 855 A.2d at
73-74.
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We affirm the orders terminating Mother’s parental rights on the basis
of sections 2511(a)(2) and (b).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2017
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