In Re: R.W.A., Appeal of: S.B.A., Mother ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R.W.A., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: S.B.A., MOTHER : No. 816 MDA 2019
Appeal from the Decree Entered April 17, 2019
in the Court of Common Pleas of Lancaster County
Orphans' Court at No(s): 2567 of 2017
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 12, 2019
S.B.A. (“Mother”) appeals from the Decree granting the Petition filed by
S.F. (“Paternal Grandmother”) and M.F. (collectively, the “Petitioners” or
“Paternal Grandparents”), and involuntarily terminating Mother’s parental
rights to her minor, male child, R.W.A. (“Child” or “the Child”), pursuant to
the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).1 We affirm.
The orphans’ court set forth the factual and procedural history of this
matter as follows:
[The Child] … was born [i]n July [] 2012. When the Child was first
born, he resided primarily with his parents. In November or
December of 2012, []Paternal Grandmother[] filed a Petition for
custody to ensure her visitation rights [concerning the Child,] and
was granted a shared physical custody schedule. On September
12, 2013, Paternal Grandmother’s partial custody was expanded
to three days a week. As time progressed, the Child spent more
and more time with [] Paternal Grandparents, eventually
escalating to three weekends a month with the[m] [].
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1Child’s biological father, R.H. (“Father”), consented to the termination of his
parental rights.
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The Lancaster County Children and Youth Social Service
Agency (hereinafter “the Agency”) received a referral regarding
Mother’s and Father’s purported [illicit] drug use in 2016. Paternal
Grandmother testified that in 2016[,] she was aware that Mother
and Father were struggling with drug use in their lives and that
she would frequently get calls requesting that [Paternal
Grandparents] take the Child immediately. The initial drug test
for Mother and Father came back invalid [for both parties,] while
the second urine screen came back positive for opiates [for both].
At the time the Agency became involved, the family consisted of
Mother, Father, the Child and Mother’s two daughters from a
previous relationship. The family left Pennsylvania during the
assessment period so Mother and Father could enter a
detoxification program in Florida. Mother testified that she went
to a detoxification program in Miami, Florida for approximately 13
days in the summer of 2016.
The family was accepted by the Agency for services on July
12, 2016[,] and eventually returned to Pennsylvania. The plan
developed for the family included goals for Mother and Father to
“cooperate with Agency services, allow home visits and allow the
caseworker into the home …[,] maintain stable housing[,] and
have income to meet the children’s basic needs.” The plan also
included a substance abuse goal requiring Mother and Father to
submit to an evaluation and follow any recommendations. There
was also a parenting goal and an education goal for the two older
girls in the home.
The Agency caseworker described Mother as being
uncooperative with her during the Agency’s involvement. Mother
had several urine screens that were invalid or unable to be tested;
specifically, on May 26, 2016, the urine was clear and cold; on
November 8, the urine was invalid for foul-smelling urine[,] and
on November 21, Mother and Father both refused a drug screen.
The Agency caseworker testified that Mother subsequently
left Pennsylvania after the Agency filed a Petition for emergency
custody of Mother’s two oldest children. When Mother left
Pennsylvania with her two daughters, the Child did not go with
her. Despite the issuance of an emergency Order granting the
Agency’s request for physical custody, Mother never attended any
hearings and did not return her two daughters to Pennsylvania.
The Agency eventually referred the case to the appropriate
authorities in Florida when it became apparent that Mother was
not returning to Pennsylvania.
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In December of 2016, Paternal Grandmother filed a Petition
for modification of the current custody Order for the Child on an
emergency basis. Paternal Grandmother’s Petition was granted
and sole physical and legal custody was awarded by Order dated
December 9, 2016. The Agency did not file a custody petition for
the Child[,] as Petitioners had filed for and been awarded custody
through the Lancaster County family court system. The Child has
resided with Petitioners since December of 2016. Father did
complete his goals and his case was closed for services on May
22, 2017. A custody conference was held on January 25, 2017.
Mother attended this conference and was represented by counsel.
Paternal Grandmother and Father also attended the custody
conference in early 2017. A follow-up custody conference was …
held on April 25, 2017. Mother was not present for the follow-up
conference but Mother’s counsel did attend. [Mother’s father]
testified that he believed Mother was in a drug rehabilitation
program at the time of the conference.
On May 10, 2017, after granting Mother a period in which to
object[,] and after receiving no objection, the court entered an
Order granting primary physical and legal custody of the Child to
Paternal Grandmother and partial physical custody to Father.
Mother was directed to have no contact with the Child pending
further order of court. [Mother’s father] testified that Mother has
not seen the Child since December of 2016.
Orphans’ Court Opinion, 4/17/19, at 3-6 (citations to the record and footnote
omitted, some capitalization altered).
On November 16, 2017, Paternal Grandparents filed a Petition seeking
to involuntarily terminate Mother’s parental rights and to adopt Child. Father
informed the court that he would consent to the termination of his parental
rights to Child, if Mother’s parental rights were terminated, and he would
consent to adoption. In January 2018, the court appointed Pamela Breneman,
Esquire, to act as Child’s guardian ad litem, who subsequently opined that
termination of Mother’s parental rights was in Child’s best interest.
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The court conducted hearings on Petitioners’ Petition on June 13, 2018,
and July 30, 2018.2 Petitioners presented the testimony of the family support
caseworker for the Agency, Father, and that of Petitioners. Mother presented
the testimony of her father and mother, and that of Mother’s daughter.
Further, Mother testified on her own behalf.3
In Mother’s brief contesting the termination, she objected that the court
had failed to appoint legal counsel for Child, pursuant to 23 Pa.C.S.A.
§ 2313(a) (requiring a court to appoint counsel to a child in a contested
termination of parental rights proceeding). Accordingly, in November 2018,
the court appointed Angela Rieck, Esquire (“Attorney Rieck”), as legal counsel
for Child. The court instructed Attorney Rieck to determine whether the record
needed to be re-opened to present testimony on behalf of Child. Attorney
Rieck thereafter sent a letter to the court stating that she had reviewed the
hearing transcripts and met with Child, and that it was unnecessary for the
court to re-open the record. Although Attorney Rieck questioned whether
Child, who was then six years old, completely understood the proceedings,
she represented that Child had clearly expressed that he wanted to remain in
the care of Petitioners.
On April 17, 2019, the court entered a Decree involuntarily terminating
Mother’s parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2),
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2Mother lives primarily in Florida, and a number of hearings were postponed
due to issues relating to service of court Notices.
3 Mother did not attend the hearing on June 13, 2018, as she was in prison.
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and (b). Mother thereafter timely filed a Notice of Appeal simultaneously with
a Pa.R.A.P. 1925 Concise Statement of errors complained of on appeal.
Mother now presents the following issues for our review:
1. Did the lower court erroneously terminate [] Mother’s parental
rights?
2. Whether the lower court failed to properly weigh the evidence
in assessing whether [] termination was appropriate?
3. Whether the lower court failed to properly weigh the best
interests of the Child by terminating [] Mother’s parental
rights?
Mother’s Brief at 5 (capitalization omitted).4
We review these claims, which we will address simultaneously due to
their relatedness, 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).
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4 While Mother stated her issues somewhat differently in her Rule 1925(b)
Concise Statement, we find them sufficiently preserved for our review.
Further, in Mother’s brief, her arguments overlap between the various
sections.
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 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 23 Pa.C.S.A. § 2511(a)(1) and (2), as well as (b). This Court may
affirm an orphans’ court’s decision regarding the termination of parental rights
with regard to any one subsection of section 2511(a), as well as a
consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). Here, we will focus our analysis on section
2511(a)(1) and (b), which provides as follows:
§ 2511. Grounds for involuntary termination
(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.
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(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.A. § 2511(a)(1), (b).
Section 2511
does not require that the parent demonstrate both a settled
purpose of relinquishing parental claim to a child and refusal or
failure to perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if the parent
either demonstrates a settled purpose of relinquishing parental
claim to a child or fails to perform parental duties.
In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998) (emphasis
in original) (citation omitted); see also In re Burns, 379 A.2d 535, 540 (Pa.
1977) (discussing parental duties and stating that “[a] child needs love,
protection, guidance, and support. These needs, physical and emotional,
cannot be met by a merely passive interest in the development of the child.
Thus, this Court has held that the parental obligation is a positive duty which
requires affirmative performance.”).
With respect to Section 2511(a)(1), Mother asserts that there is no clear
and convincing evidence that she had abandoned Child or demonstrated a
settled purpose of relinquishing her parental claim. Brief for Mother at 25.
Mother’s argument rests primarily on her own testimony that she returned to
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Pennsylvania from Florida and made diligent efforts, primarily with Father, to
see Child. Id. at 25-26. Further, Mother asserts that she attempted to contact
Child via phone several times, and mailed him a birthday card. Id. at 26, 31.
Mother also relies on the testimony of her witnesses, including her daughter,
to establish that Mother attempted to have a relationship with Child. Id. at
26.
The orphans’ court, in addressing Section 2511(a)(1), stated in its
Opinion as follows:
Mother has done nothing to parent the Child since last
seeing him in December of 2016. Any attempts by Mother’s family
to contact the Child are also irrelevant as it relates to the
termination proceeding for Mother. Mother has failed to attend to
the Child’s physical or emotional needs. Mother is to be
commended for seeking help with her substance abuse
problems[,] but time cannot stand still waiting for her to complete
her various treatment programs and incarcerations. Mother chose
to flee Pennsylvania with her two daughters and not return after
the family cruise in December of 2016. She chose to remain in
Florida[,] with [her] two [daughters] remaining in her custody[,]
at the expense of the Child, whom she left behind. Since Mother
left, the Child’s daily needs have been provided for by Petitioners.
They sought counseling services for [Child]. They take him to the
doctor and ensure he is safe.
Mother was aware of where Petitioners lived, where they
worked, [and had] their cell phone numbers and the telephone
number of their residence. Mother had the ability to access the
legal system to seek visitation with the Child and she already had
a custody lawyer. Mother failed to use any of the information or
resources available to her to see [Child]. Furthermore, she stood
by and allowed Paternal Grandparents to care for [Child] without
providing any support for him.
Mother, for a period of at least six months prior to the filing
of the [P]etition to terminate her parental rights, has failed to
perform her parental duties as they relate to the Child. Petitioners
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have met their burden to terminate Mother’s parental rights under
section 2511(a)(1).
Orphans’ Court Opinion, 4/17/19, at 11-12 (footnote omitted). Additionally,
the orphans’ court assessed Mother’s testimony, and opined that it was
incredible and vague. Id. at 10; see also id. at 11 (finding that the testimony
presented by Mother’s parents was also vague). Our review discloses that the
record supports the orphans’ court’s findings and determination, and we may
not disturb its credibility determinations, nor do we discern any abuse of its
discretion. See In re M.J.S., 903 A.2d 1, 8 (Pa. Super. 2006) (stating that
this Court may not reverse the credibility determinations of the orphans’ court
absent an abuse of discretion). Accordingly, we affirm on this basis in
concluding that there was clear and convincing evidence to support
termination of Mother’s parental rights under Section 2511(a)(1). See
Orphans’ Court Opinion, 4/17/19, at 10-12.
Turning to Section 2511(b), the court must consider whether the
termination of Mother’s parental rights would best serve the developmental,
physical and emotional needs and welfare of Child. See In re C.M.S., 884
A.2d 1284, 1286-87 (Pa. Super. 2005). “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the needs and welfare
of the child.” Id. at 1287 (citation omitted). The 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. When evaluating a
parental bond, “the court is not required to use expert testimony. Social
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workers and caseworkers can offer evaluations as well. Additionally, section
2511(b) does not require a formal bonding evaluation.” In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010) (internal citations omitted).
Here, Mother argues that she desires to have the same bond with Child
that she does with her other children, and that there was a bond between her
and Child. See Brief for Mother at 23-24. Mother asserts that it was in Child’s
best interest to wait until Child comprehends the full impact of terminating
Mother’s parental rights, so that Mother could continue to improve her life and
have a relationship with Child. Id. at 28, 39-40. Additionally, Mother argues
that the court should have “appointed a counselor and/or therapist to assess
the mother-child relationship and what was in the best interests of the
[C]hild.” Id. at 42-43.
In addressing Section 2511(b), the orphans’ court credited testimony
that Child’s life was not stable prior to December 2016, particularly where
Mother and Father used drugs in front of Child. Orphans’ Court Opinion,
4/17/19, at 16; see also id. (finding that Child’s life had been “unstable,
unsafe and transient.”). Further, the court observed that, after custody
transferred to Paternal Grandmother, Mother did nothing to ensure ongoing
contact with Child. Id. In Mother’s absence, Petitioners took on the parental
role in Child’s life. Id. at 16-17. The court credited testimony from M.F.,
Paternal Grandmother’s husband, that Child does not mention Mother. Id. at
17. Further, the court considered the guardian ad litem’s position that Child
spoke very little about Mother, and that Child was very comfortable with
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Petitioners, wherein there was a “genuine caring atmosphere in the home.”
Id. Additionally, the court noted Father’s testimony that Mother made no
request to see Child. Id. The court further determined as follows:
The Child deserves stability, permanence and safety. He
should not be made to wait until it is convenient for Mother or
Father to parent. Mother asserts that her rights should not be
terminated as she is not calling for the Child to be removed from
the home of Petitioners at this time and that an ongoing custody
order could protect against any of Petitioners’ concerns. But
childhood is short and the Child deserves a stable home where his
physical, emotional and safety needs are met. To allow Mother to
try to inject herself back into the life of the Child now[,] or at some
unknown time in the future[,] does not provide the Child with any
stability or feeling of permanence.
Based upon the evidence presented, and having resolved all
issues of credibility, the [c]ourt finds … that Petitioners have
established by clear and convincing evidence that the parental
rights of Mother should be terminated as requested, and that the
termination will promote and enhance the developmental, physical
and emotional needs and welfare of the Child.
Id. at 18. Our review discloses that the record supports the court’s findings,
and we discern no abuse of its discretion in determining that Child’s best
interests are served through the termination of Mother’s parental rights.5
Finally, Mother argues that the orphans’ court erred when it appointed
counsel for Child, Attorney Rieck, after the close of testimony. See Brief for
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5 To the extent Mother asserts that expert testimony was needed to evaluate
the bond between her and Child, this is clearly belied by the law. See In re
Z.P., supra. Further, while Mother may profess to love Child, a parent’s own
feelings of love and affection for a child, alone, will not preclude termination
of parental rights. See In re Z.P., 994 A.2d at 1121. By the time of the
termination hearings, the credited testimony established that Mother had not
seen Child since December 2016, which constituted a substantial portion of
his young life.
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Mother at 26-27. Though Mother acknowledges that the court gave Attorney
Rieck an opportunity to review the record, Mother contends that the late
appointment of counsel was insufficient, as Child’s interests were not
protected throughout the proceedings. Id. at 27. Further, according to
Mother, “[b]oth the guardian ad litem and [Attorney Rieck] stated Child did
not fully comprehend the effect of the termination of [] Mother’s rights.” Id.
at 38-39.
The orphans’ court rejected Mother’s claims, reasoning as follows:
[T]he court, out of an abundance of caution, did appoint
[Attorney Rieck] for the Child and provided that attorney with the
opportunity to review the record and open the matter for further
testimony if counsel deemed it appropriate. In accordance with
the court’s deadline, [Attorney Rieck] informed the court that
opening the record was unnecessary. Any possible error due to
the delay in the appointment of counsel for the Child was remedied
by allowing counsel ample time to review the record and reopen
the matter if counsel deemed it necessary.
The second issue raised by Mother … is the failure to
consider the Child’s lack of understanding of the proceeding, which
is not persuasive. There is no statutory requirement that a child
subject to a petition for adoption “fully comprehend” the
termination of the rights of the biological parents. To require that
a child fully comprehend termination would result in the
unwarranted delay of adoption for years for all children. Under
Mother’s theory, an infant would wait years while it developed
language and comprehension skills before an adoption could be
completed. To make the Child wait in limbo for some unspecified
amount of time until the Child could fully comprehend the
implications of terminating Mother’s parental rights only serves
Mother’s interest and is to the detriment of what is in the best
interests of the Child. Childhood is short. The Child deserves
stability and permanence during his childhood[,] and this stability
has been provided by the Paternal Grandparents.
Orphans’ Court Opinion, 6/11/19, at 2-3 (some capitalization altered).
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We discern no error of law or abuse of discretion in the court’s analysis.
Moreover, the court complied with our Supreme Court’s dictates in In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), which held that 23
Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in contested involuntary termination
proceedings. Id. at 183; see also id. (noting that legal interests are
synonymous with the child’s preferred outcome, but the child’s best interests
are determined by the court). Here, the record reflects there was no conflict
between Child’s preferred outcome and his best interest, and the appointment
of the guardian ad litem satisfied the requirements of Section 2313, regardless
of the late appointment of legal counsel for Child. Further, there is no
requirement that a child “fully comprehend” the impact of the termination of
parental rights. Rather, the Supreme Court has determined that when a child
is pre-verbal, and therefore clearly unable to “fully comprehend” the impact
of the termination of parental rights, there is no conflict between the child’s
best and legal interests. See In re T.S., 192 A.3d at 1092-93. Child was
verbal and expressed his preferred outcome, which was to live with
Petitioners. Attorney Rieck conveyed Child’s preferred outcome to the court,
and the court did not err by entering its Decree before Child “fully
comprehended” the impact that termination of Mother’s parental rights might
have on him.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2019
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