In the Interest of: A.J.C., Appeal of: J.L.F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.C., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: J.L.F., MOTHER : No. 608 MDA 2020
Appeal from the Decree Entered March 17, 2020
In the Court of Common Pleas of Lancaster County
Orphans' Court at No: 2486 of 2019
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 14, 2020
J.L.F. (“Mother”) appeals from the decree entered on March 17, 2020,
which terminated involuntarily her parental rights to her daughter, A.J.C.
(“Child”), born in October 2017.1 After careful review, we affirm.
The record reveals that the Lancaster County Children and Youth Social
Service Agency (“CYSSA”) has a lengthy history of involvement with Mother
dating back to 2005, due to her substance abuse and medical neglect of her
first child. N.T., 2/4/20, at 60. CYSSA became involved with Mother a second
time in 2015, after it learned that she had been charged with endangering the
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1The orphans’ court entered a separate decree terminating involuntarily the
parental rights of Child’s father, D.C. (“Father”). Father appealed at Superior
Court docket number 595 MDA 2020. We address his appeal in a separate
memorandum.
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welfare of a different child.2 Id. at 60-61. She was indicated as a perpetrator
of abuse regarding that child. Id. at 61.
CYSSA became involved with Mother yet again following Child’s birth in
October 2017, when it received a report indicating that Father had overdosed
in the hospital. Id. at 58. CYSSA implemented a safety plan, which it lifted
in December 2017, based on Mother’s compliance with services. Id. at 59.
However, on August 30, 2018, CYSSA received another report indicating that
Mother overdosed, and that Father “left [Child] at a crack house.”3 Id. at 57-
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2 This charge arose from an incident during which Mother was intoxicated and
left the child “outside at night and there was [sic] cars coming by.” N.T.,
2/4/20, at 60-61.
3 The CYSSA caseworker testified that Mother did not overdose but suffered a
seizure. N.T., 2/4/20, at 72. Further, CYSSA presented the expert testimony
of psychologist, Jonathan Gransee, Psy.D., who performed parental capacity
assessments of Mother and Father. Dr. Gransee’s report regarding Father also
states that Mother suffered a seizure, based on a conversation with the CYSSA
caseworker. Petitioner’s Exhibit 4 at 8. Despite this evidence, the orphans’
court indicates in its opinion that Mother’s claim she suffered a seizure has
“not been credibly substantiated.” Orphans’ Court Opinion, 3/17/20, at 1.
Notably, Dr. Gransee’s report casts doubt on the allegation that Father
left Child at a “crack house” as well. The report states:
[T]here were allegations that [Father] had left his daughter at a
“crack house;” he stated this was a friend[’s] house, and not a
crack house. (His caseworker stated “it was never amended”, but
she believes that he is correct, but the parents never contested
the statements in the report, so it has never been amended. She
stated that it was still the case that [Father] did not make a wise
choice as to whom he left the child with).
Petitioner’s Exhibit 4 at 2.
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58. CYSSA obtained custody of Child that same day. Id. at 57. The juvenile
court adjudicated Child dependent on September 19, 2018. Id. at 80.
Following the adjudication of dependency, Mother made little progress
toward achieving reunification with Child. She was charged with endangering
the welfare of children due to her substance abuse and resulting neglect of
Child, and pled guilty. Petitioner’s Exhibit 5 (documents related to Mother’s
criminal conviction). Mother was incarcerated in December 2018, and she
remained incarcerated throughout Child’s dependency. N.T., 2/4/20, at 73.
On October 11, 2019, CYSSA filed a petition to terminate her parental rights
to Child involuntarily.
The orphans’ court conducted a hearing on CYSSA’s termination petition
on February 4, 2020. Following the hearing, on March 17, 2020, the court
entered a decree terminating Mother’s parental rights. Mother timely filed a
notice of appeal on April 14, 2020, along with a concise statement of errors
complained of on appeal.
Mother now raises the following claim for our review:
Whether the [o]rphan’s [c]ourt erred in its Decree dated March
17, 2020, that [CYSSA] had met its burden in proving that
Mother’s parental rights should be terminated when there was
evidence she was working on and completing her goals on her
child permanency plan throughout her incarceration and would be
released soon[?]
Mother’s Brief at 8.
We review Mother’s claim in accordance with the following standard of
review:
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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).
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It 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 to
Child pursuant to Section 2511(a)(1), (2), (5), (8), and (b). We need only
agree with the court as to any one subsection of Section 2511(a), as well as
Section 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
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2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze
the court’s decision pursuant to Section 2511(a)(2) and (b), which provides
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 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.A. § 2511(a)(2), (b).
We first consider whether the orphans’ court abused its discretion by
terminating Mother’s parental rights to Child pursuant to Section 2511(a)(2).
Our analysis is as follows:
. . . . In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
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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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination 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) (citations
omitted). Significantly, “a parent’s incarceration is relevant to the [S]ection
[2511](a)(2) analysis and, depending on the circumstances of the case, it may
be dispositive of a parent’s ability to provide the ‘essential parental care,
control or subsistence’ that the section contemplates.” In re A.D., 93 A.3d
888, 897 (Pa. Super. 2014) (citation omitted).
In her brief, Mother argues that the orphans’ court discounted testimony
favorable to her regarding her progress in substance abuse treatment, among
other things. Mother’s Brief at 11-19. Mother also complains that the court
placed weight on factors that were beyond her control while she remained
incarcerated, including her lack of visits with Child and delayed enrollment in
a parenting program. Id. at 15. She asserts that she requested visits with
Child and attempted to maintain a relationship with her. Id. at 11, 14-16.
The orphans’ court explained its decision to terminate Mother’s parental
rights to Child pursuant to Section 2511(a)(2) as follows:
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Here, Mother[’s] and Father’s extended period[s] of recent
incarceration clearly rises to the level of . . . continued incapacity.
As discussed previously, the parents have failed to provide any
parental care to the Child except during the one visit they were
each able to have with the Child in 2018. While Mother and Father
are hopeful that they will regain the ability to parent their Child,
no credible evidence has been presented sufficient to demonstrate
that Mother or Father will be able to maintain a life of sobriety and
financial stability that is necessary for the upbringing of a child.
Therefore, the court is satisfied that [CYSSA] has proven, by clear
and convincing evidence, that termination of Mother’s and
Father’s parental rights is warranted pursuant to Section
2511(a)(2).
Orphans’ Court Opinion, 3/17/20, at 13.
Our review of the record supports the decision of the orphans’ court. As
summarized above, CYSSA has a lengthy history of involvement with Mother
dating back to 2005, due to her substance abuse and medical neglect of her
first child. N.T., 2/4/20, at 60. CYSSA became involved with Mother a second
time in 2015, when she was charged with endangering the welfare of a
different child. Id. at 60-61. Mother was indicated as a perpetrator of abuse
regarding that child. Id. at 61.
CYSSA became involved with Mother yet again following Child’s birth in
October 2017, when it received a report that Father overdosed in the hospital.
N.T., 2/4/20, at 58. Child then entered foster care on August 30, 2018, after
CYSSA received a second report indicating that Mother overdosed, and that
Father “left [Child] at a crack house.” Id. at 57-58. Although it appears that
this second report was inaccurate, the record confirms that Mother was in no
position to provide appropriate parental care at the time of Child’s placement.
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Mother was arrested in December 2018 and charged with endangering Child’s
welfare, to which she pled guilty. Petitioner’s Exhibit 5. The information
containing Mother’s charge states that she endangered Child between March
and August 2018, “by frequently being under the influence of drugs or alcohol,
to a degree that [she] was unable to care for [Child’s] basic needs including
supervision, feeding and hygiene.” Id. Mother was incarcerated in December
2018 and remained incarcerated during the termination hearing on February
4, 2020. Id. at 62, 72-73.
While incarcerated, Mother made little progress toward addressing her
history of substance abuse and other parenting deficits. Mother completed a
substance abuse treatment program during her incarceration, and participated
in something called the “Living Safely” program, but reported that she had
been unable to participate in a parenting program.4 Id. at 73-76, 93-94. In
addition, despite completing a substance abuse treatment program during her
incarceration, Mother acknowledged that she would need extensive additional
substance abuse treatment. She testified that she would complete the Living
Safely program and be released on approximately March 24 or 25, 2020, after
which she planned to attend an inpatient rehabilitation facility. Id. at 97-98.
Mother anticipated that she would spend forty-five to sixty days at the facility
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4During the hearing, Mother presented an exhibit indicating that she would
begin attending a parenting program on February 13, 2020. N.T., 2/4/20, at
93; Exhibit M-2.
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and then go to a halfway house, “or the [community corrections center] until
I could get into a women’s and children’s center and just continue to work to
get my daughter back.” Id. Thus, by Mother’s own admission, she remained
incapable of parenting Child at the time of the termination hearing, and could
not or would not remedy her parental incapacity in the foreseeable future.
Importantly, CYSSA also presented the expert testimony of Dr. Gransee,
who opined that Mother lacked parental capacity at the time he evaluated her
in March 2019. Id. at 14, 17. Dr. Gransee testified that Mother’s recent
actions gave him “a lot of hope[,]” but that it would take approximately a year
before she would be in a position to parent Child, at the earliest. Id. at 20,
40. He explained, “If she were to snap to it really quickly, she could probably
be up and running within a year. If she fights the process, there's no telling.”
Id. at 20. In light of this evidence, we discern no abuse of discretion by the
orphans’ court in terminating Mother’s parental rights to Child pursuant to
Section 2511(a)(2), and we affirm that portion of the court’s March 17, 2020
decree.
We next consider whether the orphans’ court abused its discretion by
terminating Mother’s parental rights to Child pursuant to Section 2511(b). We
apply the following analysis.
. . . . Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
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if any, between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with his or
her child is a major aspect of the [S]ection 2511(b) best-interest
analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the best
interest of the child.
[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) (quotation marks and
citations omitted).
Mother waived any challenge to Section 2511(b) by failing to include
and develop it in the argument section of her brief. See In re M.Z.T.M.W.,
163 A.3d 462, 465 (Pa. Super. 2017) (“[T]his Court will not review a claim
unless it is developed in the argument section of an appellant’s brief, and
supported by citations to relevant authority.”).
Even if Mother had preserved a claim regarding Section 2511(b) for our
review, we would conclude that it does not entitle her to relief. Mother has
had no contact with Child since a visit on October 2, 2018, when Child was
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approximately one year old.5 N.T., 2/4/20, at 68. In contrast, Child has spent
her entire placement in foster care residing in the same foster home, which is
potentially a permanent home. Id. at 70-71. By the time of the hearing on
February 4, 2020, Child had spent over half of her life in the foster home and
referred to her foster parents as “mommy” and “daddy.” Id. at 71, 87. It is
clear that Child shares a meaningful bond with her foster parents and not with
Mother. See In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008) (observing
that the relationship between K.Z.S. and his mother must have been “fairly
attenuated,” given that K.Z.S. had been in foster care for most of his young
life, and had only limited contact with his mother during that time); see also
Matter of Adoption of M.A.B., 166 A.3d 434, 449 (Pa. Super. 2017) (“[A]
child develops a meaningful bond with a caretaker when the caretaker
provides stability, safety, and security regularly and consistently to the child
over an extended period of time.”). Thus, termination of Mother’s parental
rights would best serve Child’s needs and welfare pursuant to Section 2511(b).
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5 Mother asserts in her brief on appeal that she “always requested visitation
even though incarcerated, but limited visitation was only provided one time
while incarcerated.” Mother’s Brief at 15. Our review of the record does not
support this assertion. The CYSSA caseworker testified that Mother did not
have visits with Child during her incarceration, “because of the offenses and
the location of being incarcerated,” and did not state that Mother had ever
requested visits. N.T., 2/4/20, at 68, 73. Similarly, Mother testified that she
did not have visits with Child, and agreed that she “would have wanted” to
visit, but did not state that she requested visits. Id. at 99-100. Even if Mother
had requested visits, that would not change our analysis and conclusions.
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Based on the foregoing analysis, we conclude that the orphans’ court
did not abuse its discretion by terminating Mother’s parental rights to Child
involuntarily, and we affirm the court’s May 17, 2020 termination decree.
Decree affirmed.
Judge Murray joins the memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2020
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