In the Interest of: D.M.L., a Minor ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.M.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.L.L., MOTHER :
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: No. 459 MDA 2018
Appeal from the Decree Entered February 12, 2018
In the Court of Common Pleas of Lancaster County Orphan’s Court
Division at No(s): 2690 2017
CP-36-DP-0000105-2017
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 12, 2019
J.L.L. (“Mother”) appeals from the orphans’ court decree entered on
February 12, 2018, that involuntarily terminated her parental rights to her
son, D.M.L.1 We affirm.2
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1 On the same date, D.M.L.’s father, S.L. (“Father”), relinquished his parental
rights voluntarily.
2 Albert J. Meier, Esquire, Mother’s court-appointed counsel, initially filed a
petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738 (1967). However, the Anders brief was noncompliant insofar as it was
not clear that counsel performed a comprehensive examination of the entire
record before determining that Mother’s appeal was wholly frivolous. On
September 6, 2018, we remanded this case with instructions for counsel to
file a motion in the orphan’s court to supplement the orphans’ court record
and then file in this Court either an advocate’s brief or an Anders brief that
reflected his review of the entire record. Counsel complied with our directives,
electing to file an advocate’s brief that purported to withdraw his request to
proceed in accordance with Anders. See Mother’s brief at 7, 22. CYS and
the guardian ad litem filed their replies on November 20, and December 19,
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* Retired Senior Judge assigned to the Superior Court.
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When D.M.L. was born in May of 2017, Lancaster County Children and
Youth Social Service (“CYS”) had already been involved with the family for
two years due to, inter alia, Mother’s drug abuse in relation to D.M.L.’s older
brother, S.L., Jr. During August 2016, the orphans’ court terminated the
parental rights of Mother and Father to the older child. Subsequently, in
January of 2017, CYS received a report that Mother was pregnant with D.M.L.
During that pregnancy, Mother tested positive for cocaine, and she and D.M.L.
both tested positive for cocaine following D.M.L.’s birth seven weeks
premature.
On June 12, 2017, the juvenile court adjudicated D.M.L. dependent and
found aggravated circumstances as to both Mother and Father as a result of
the prior termination of their parental rights to S.L., Jr. Consequently, CYS
was relieved of its obligation to employ reasonable efforts toward
reunification. CYS placed D.M.L. in a pre-adoptive foster home, where he
remains. The child’s permanency goal is adoption and his concurrent goal is
placement with a permanent legal guardian. D.M.L. continues to visit with his
older half-brother twice per month. Following a probation violation, Mother
was incarcerated on November 21, 2017, with an expected release date in
May 2018.
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2018, respectively. Having retained jurisdiction over this matter, we hereby
dismiss counsel’s petition to withdraw from representation and address the
merits of Mother’s appeal.
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On December 7, 2017, CYS filed a petition to involuntarily terminate
Mother’s parental rights to D.M.L. The court appointed Attorney Meier to
represent Mother. Nine-month-old D.M.L. continued to be represented by the
guardian ad litem appointed during the juvenile court proceedings. On
January 24, 2018, the orphans’ court entered an order incorporating the
juvenile court record into the termination-of-parental-rights proceedings. In
addition, the orphans’ court judge, who did not preside over the dependency
proceedings, “ordered transcripts for all [j]uvenile [c]ourt proceedings and
independently reviewed the [j]uvenile court record[.]” Trial Court Opinion,
4/13/18, at 2 n.1. Following hearings on January 22 and February 12, 2018,
the orphans’ court involuntarily terminated Mother’s parental rights to D.M.L.
pursuant to 23 Pa.C.S § 2511(a)(1), (2), and (b). Mother filed a timely notice
of appeal as well as a concise statement of errors complained of on appeal.
Mother raises a single issue. “Did the court err and abuse its discretion
in not giving Mother additional time to complete drug rehabilitation and other
necessary programs after her scheduled release from prison in May of 2018,
as Mother maintains that she is doing everything that she needs to do?”
Mother’s brief at 7.
We review this claim 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
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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 § 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).
As noted supra, the orphans’ court terminated Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). This Court may affirm the
orphans’ court’s decision regarding the termination of parental rights with
regard to any one subsection of § 2511(a) as well as (b). See In re B.L.W.,
843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Instantly, the certified record
supports the juvenile court’s decision under subsection 2511(a)(1), and (b).
The relevant subsections provide as follows:
§ 2511. Grounds for involuntary termination
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(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 of 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), and (b).
Our Supreme Court set forth the proper inquiry under § 2511(a)(1) as
follows:
Once the evidence establishes a failure to perform parental duties
or a settled purpose of relinquishing parental rights, the court
must engage in three lines of inquiry: (1) the parent’s explanation
for his or her conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect of termination
of parental rights on the child pursuant to Section 2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998).
As it relates to timing, this Court further explained,
the trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision. The
court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination
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of his or her parental rights, to determine if the evidence, in light
of the totality of the circumstances, clearly warrants the
involuntary termination.
In re N.M.B., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). In this
vein, “[a] parent’s vow to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may properly be rejected as
untimely or disingenuous.” Id. at 340. As it relates to § 2511(a)(1), “A parent
is required to exert a sincere and genuine effort to maintain a parent-child
relationship; the parent must use all available resources to preserve the
parental relationship and must exercise ‘reasonable firmness’ in resisting
obstacles placed in the path of maintaining the parent-child relationship.” In
re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003).
With regard to a parent’s incarceration, in In re Adoption of S.P., 47
A.3d 817, 828 (Pa. 2012), our Supreme Court stated “incarceration neither
compels nor precludes termination of parental rights” and outlined the
appropriate § 2511(a)(1) analysis in that situation:
[a]pplying [In re: Adoption of McCray, 331 A.2d 652, 655 (Pa.
1975),] the provision for termination of parental rights based upon
abandonment, now codified as § 2511(a)(1), we noted that a
parent “has an affirmative duty to love, protect and support his
child and to make an effort to maintain communication and
association with that child.” We observed that the father’s
incarceration made his performance of this duty “more difficult.”
Id.
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....
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his or her
incarceration. Rather, we must inquire whether the parent
has utilized those resources at his or her command while
in prison in continuing a close relationship with the child.
Where the parent does not exercise reasonable firmness in
declining to yield to obstacles, his other rights may be
forfeited.
In re Adoption of S.P., supra at 828 (quoting In re: Adoption of McCray,
supra at 655) (footnotes and internal quotation marks omitted).
The crux of Mother’s argument is that the orphans’ court discounted the
effect of her incarceration when it terminated her parental rights on February
12, 2018. Highlighting her completion of a New Beginnings program during
her six months of imprisonment, and her attempts to enter additional
substance abuse and parenting programs during that period, Mother contends
that she addressed her underlying substance abuse problems despite the
obstacle of incarceration. She asserts that she has maintained sobriety since
July 2017. Mother further notes her plan to engage in “long term substance
abuse rehabilitation center, probably for several months[,]” before eventually
transitioning to reunifying with her son. Mother’s brief at 19. Thus, Mother
argues that “she did what she could do to prepare herself for reunification”
and contends that the orphans’ court abused its discretion in neglecting to
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grant her additional time to complete additional programs once she is released
from prison. For the following reasons, we disagree.
Mother overstates the impact of her six-month incarceration. As noted,
supra, while the fact of incarceration does not compel the termination of
parental rights, it may be a relevant consideration. The proper inquiry
examines whether a parent utilized available resources to overcome the
obstacles of incarceration. “Where the parent does not exercise reasonable
firmness in declining to yield to obstacles, his [or her] other rights may be
forfeited.” In re Adoption of S.P., supra at 828.
Mother completed one alcohol program while she was incarcerated and
requested to participate in two maintenance programs. However, since
§ 2511(b) excludes from the orphans’ court’s § 2511(a)(1) analysis any
remedial efforts that a parent initiates after the filing of the petition to
terminate parental rights, even those negligible efforts fail. Accordingly,
Mother’s incarceration did not impact the termination of her parental rights.
Furthermore, absent consideration of Mother’s recent efforts, the record
belies her contention that she has started to address her substance abuse
problems. D.M.L. tested positive for cocaine as a newborn, and the juvenile
court adjudicated him dependent with a finding of aggravated circumstances
approximately one month later. Six months after those adjudications, and
with no improvement from Mother, the agency filed a petition to terminate
Mother’s parental rights. Significantly, as it relates to Mother’s instant claim,
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she was incarcerated only two weeks prior to the date CYS sought to terminate
her parental rights, and the agency cited neither the fact of Mother’s
incarceration nor its effect on her ability to parent D.M.L. as a ground to
terminate parental rights.
Moreover, while Mother requests additional time to address her
substance abuse problems, she failed to present any evidence to support her
protestation that she made any significant progress toward that endeavor
since CYS terminated her rights to her older child during 2015. Thus, her
current claim is unavailing. See In re A.L.D. supra at 340 (“A parent’s vow
to cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous.”). No relief is due.
Next, while Mother did not contest the orphans’ court’s § 2511(b)
determination in her statement of questions presented, she assails the court’s
decision in the argument section of her brief. Pursuant to Pa.R.A.P 2116, this
Court may disregard issues that are not identified in the statement of
questions presented.3 However, in an abundance of caution, and mindful of
the three-step review outlined in In re Adoption of Charles E.D.M., supra,
we address Mother’s claim insofar as it implicates D.M.L.’s bests interests.
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3 Rule 2116 provides, “[n]o question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.”
Pa.R.A.P. 2116(a).
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In deciding In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010), we
highlighted the following relevant aspects of a orphans’ court’s § 2511(b)
analysis. “In this context, the court must take into account whether a bond
exists between child and parent, and whether termination would destroy an
existing, necessary and beneficial relationship.” Id. The court is not required
to use expert testimony, and social workers and caseworkers may offer
evaluations as well. Id. Ultimately, the concern is the needs and welfare of
a child. Id. Where there is no evidence of a bond between the parent and
child, it is reasonable to infer that no bond exists. In re: K.Z.S., 946 A.2d
753, 763 (Pa.Super. 2008). In addition, as we observed in In re A.S., 11
A.3d 473, 483 (Pa.Super. 2010), “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.”
In terminating Mother’s parental rights, the orphans’ court concluded
that no parent-child bond existed and that D.M.L.’s current pre-adoptive home
best suited his developmental, physical, and emotional needs and welfare. In
reaching this decision, the court highlighted the attendant facts that Mother
has not seen D.M.L. since the hospital discharged him when he was one month
old, and that she never attempted to initiate a relationship with him.
Mother asserts that, given the child’s infancy when he was removed
from Mother’s care, her absence from the child’s life is less significant than if
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he were an older child. She posits, “The tender age of the child indicates that
there is ample time for Mother to complete her plan and still bond with her
infant son.” Mother’s brief at 20. Again, no relief is due.
We reject Mother’s attempt to diminish the damaging effects of her
complete absence from her son’s life by invoking the elasticity of infancy and
the restorative properties of the passage of time. First, the child’s age does
not wholly mitigate the consequences of Mother’s pronged absence and
complete failure to perform parental duties. Furthermore, Mother’s argument
ignores the palpable advantage that inures to the benefit of D.M.L. through
his relationship with his pre-adoptive family. As we previously observed in In
re A.S., supra at 483, “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.”
The certified record demonstrates that D.M.L. is thriving in his current
environment and that his pre-adoptive family supports the continuation of his
relationship with his older half-sibling. In light of Mother’s complete absence
from D.M.L.’s life and the beneficial relationships that D.M.L. shares with his
pre-adoptive family, it is obvious that his need for stability and permanency
would be best served by the termination of Mother’s parental rights in
anticipation of adoption. Thus, we sustain the trial court’s conclusion that
clear and convincing evidence supports the termination of Mother’s parental
rights with respect to § 2511(b).
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For all of the foregoing reasons, we affirm the decree terminating
Mother’s parental rights to D.M.L. pursuant to § 2511(a)(1), and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/12/2019
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