In the Int. of: O.B., a Minor Appeal of: A.B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: O.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.B., MOTHER No. 2077 MDA 2014
Appeal from the Order entered November 7, 2014,
in the Court of Common Pleas of Lackawanna County,
Juvenile Division, at No(s): CP-35-DP-0000017-2013
Orphans’ Court No. A-30-2014
IN THE INTEREST OF: S.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.B., MOTHER No. 2078 MDA 2014
Appeal from the Order entered November 7, 2014,
in the Court of Common Pleas of Lackawanna County,
Juvenile Division, at No(s): CP-35-DP-0000016-2013,
Orphans’ Court No. A-31-2014
BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 14, 2015
A.B. (“Mother”) appeals from the orders that involuntarily terminated
her parental rights to her son, S.B., born in December of 2008, and her
daughter, O.B., born in December of 2009 (collectively, “the children”).
Upon careful review, we affirm.1
In its opinion that accompanied the subject order, the orphans’ court
fully and correctly set forth the relevant facts and procedural history of this
1
The parental rights of the children’s father, E.B. (“Father”), were
involuntary terminated by the same order. Father has not filed notices of
appeal, and he is not a party to this appeal.
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case, which we adopt herein. See Trial Court Opinion, 11/7/14, at 1-4, 12-
18. By way of background, Father voluntarily placed the children in foster
care on February 4, 2013; Mother was incarcerated at the time. Id. at 2.
Mother was released from prison shortly before the adjudication hearing on
March 15, 2013. N.T., 6/4/14, at 133. During the hearing, Mother and
Father stipulated to the children’s adjudication. Id. at 3. A permanency
plan of reunification was established for the family.
On April 10, 2014, the Lackawanna County Office of Youth and Family
Services (“OYFS”) filed petitions for the involuntary termination of Mother’s
parental rights to the children pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5),
(8), and (b). A hearing was held on June 4, 2014, June 9, 2014, and
September 9, 2014. OYFS presented the testimony of the following
witnesses: Stacey Vogler-Musil, the OYFS caseworker; Doug Vreeland, a
counselor at the Drug & Alcohol Treatment Service, via telephone; Corey
Flemming, the adoption permanency worker at Children’s Choice in
Philadelphia; and Roberta Fratzola, the OYFS caseworker. Mother testified
on her own behalf.
By order dated November 7, 2014, the orphans’ court granted the
petitions. Mother timely filed notices of appeal and concise statements of
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b),
which this Court consolidated sua sponte.2
On appeal, Mother presents the following issues for our review:
A. Whether the [orphans’] court erred as a matter of law or
sufficiently abused its discretion in determining [that OYFS]
presented sufficient evidence to satisfy the grounds for
termination of the Mother’s parental rights under Section
[2]511(a)(8) of the Adoption Act?
B. Whether the [orphans’] court erred as a matter of law or
sufficiently abused its discretion in determining [that OYFS]
presented sufficient evidence to satisfy the grounds for
termination of the Mother’s parental rights under Section
[2]511(a)(1) of the Adoption Act?
C. Even if this Court determines [that OYFS] presented sufficient
evidence to satisfy the grounds for termination of the Mother’s
parental rights under Section [2]511(a)(1) and/or Section
[2]511(a)(8) of the Adoption Act, whether the [orphans’] court
nevertheless erred as a matter of law and/or manifestly abused
its discretion in determining that the conditions that led to
removal have not been remedied and reunification of parent and
child[ren] was not imminent at the time of the hearing[?]
D. Even if this Court determines [that OYFS] presented sufficient
evidence to satisfy the grounds for termination of the Mother’s
parental rights under Section [2]511(a)(1) and/or Section
[2]511(a)(8) of the Adoption Act, whether the [orphans’] court
nevertheless erred as a matter of law and/or manifestly abused
its discretion in determining that termination of the Mother’s
parental rights is in the best interest of the child[ren]?
Mother’s Brief at 5.3
2
We recognize this appeal has been delayed for listing before this Court.
The delay is due to the untimely receipt of the certified record. This Court
has acted diligently in attempting to facilitate the prompt processing of this
appeal.
3
We have re-ordered Mother’s issues for ease of disposition.
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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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 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.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). The
burden is upon the petitioner to prove by clear and convincing evidence that
the asserted statutory grounds for seeking the termination of parental rights
are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Instantly, we conclude the trial court properly terminated Mother’s
parental rights pursuant to Section 2511(a)(2) and (b), which provide as
follows:4
(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 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
4
See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc) (stating
that this Court need only agree with any one subsection of 23 Pa.C.S.A.
§ 2511(a), along with Section 2511(b), in order to affirm the termination of
parental rights).
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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)(2), (b).
To satisfy the requirements of 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 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). The grounds for termination of parental
rights under Section 2511(a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
With respect to Section 2511(b), the requisite analysis is 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).
Instantly, because we conclude that the orphans’ court properly
terminated Mother’s parental rights pursuant to Section 2511(a)(2), we do
not review Mother’s first issue related to Section 2511(a)(8). See B.L.W.,
supra. In addition, we do not review Mother’s second issue related to
Section 2511(a)(1) because OYFS did not seek termination under that
subsection. To the extent that Mother raises an issue with respect to
Section 2511(a)(2) in her third issue, we affirm the order under this
subsection on the basis of the orphans’ court opinion, which the testimonial
evidence overwhelmingly supports. See Trial Court Opinion, 11/7/14, at 12-
17, 25-27 (finding that Mother was diagnosed with an opioid dependence
and was unsuccessfully discharged by the Drug and Alcohol Treatment
Service for failing to attend; Mother failed to complete drug screens
requested by OYFS; Mother failed to participate in a mother’s group and a
parenting program as set forth in her permanency plan; Mother never
reported to the caseworker that she had employment; Mother did not
maintain a safe home because her paramour, with whom she lives, is an
indicated perpetrator of sexual abuse; Mother never pursued mental health
treatment; Mother needed to be redirected by the caseworker during her
supervised visits with the children). As such, we conclude that Mother’s
repeated and continued incapacity, neglect, or refusal to comply with her
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permanency plan has caused the children to be without essential parental
care, control or subsistence necessary for their physical or mental well-
being, and the conditions and causes of the incapacity, neglect, or refusal
cannot or will not be remedied by Mother.
In her fourth and final issue, Mother argues, in the alternative, that
the evidence of record does not support termination under Section 2511(b).
To the extent Mother argues that the evidence was insufficient because
there was no formal bonding evaluation, we disagree. It is well-settled that
trial courts are not required by statute or precedent to order that a formal
bonding evaluation be performed by an expert. See In re K.K.R.-S., 958
A.2d 529, 533 (Pa. Super. 2008).
Our Supreme Court has explained, “the mere existence of a bond or
attachment of a child to a parent will not necessarily result in the denial of a
termination petition.” In re T.S.M., 71 A.3d at 267. The Court further
stated, “[c]ommon sense dictates that courts considering termination must
also consider whether the children are in a pre-adoptive home and whether
they have a bond with their foster parents.” Id. at 268 (citation omitted).
In considering the affection a child may have for his or her natural
parents, this Court has explained:
[C]oncluding a child has a beneficial bond with a parent
simply because the child harbors affection for the parent is
not only dangerous, it is logically unsound. If a child’s
feelings were the dispositive factor in the bonding analysis,
the analysis would be reduced to an exercise in semantics
as it is the rare child who, after being subject to neglect
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and abuse, is able to sift through the emotional wreckage
and completely disavow a parent. . . . Nor are we of the
opinion that the biological connection between [the parent]
and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a
parent, to establish a de facto beneficial bond exists. The
psychological aspect of parenthood is more important in
terms of the development of the child and its mental and
emotional health than the coincidence of biological or
natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations
and quotation marks omitted).
This Court has also stated:
[I]n 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.
Additionally, this Court stated that the trial court should consider
the importance of continuity of relationships and whether any
existing parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)).
Instantly, we affirm the order under Section 2511(b) on the basis of
the orphans’ court opinion, which the testimonial evidence supports. See
Trial Court Opinion, 11/7/14, at 12-18; 25-30 (finding credible the testimony
of Ms. Fratzola, the OCYF caseworker, that a parent-child bond does not
exist between the children and Mother, but that a bond does exist between
the children and their foster parents). As such, we conclude that the
testimonial evidence supports the orphans’ court’s decision that involuntarily
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terminating Mother’s parental rights would serve the developmental,
physical, and emotional needs and welfare of the children. Accordingly, we
affirm the orders involuntarily terminating Mother’s parental rights to the
children pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2015
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