In Re: Adoption of: D.L.L., Appeal of: S.F.F. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF D.L.L. : IN THE SUPERIOR COURT OF
(ADOPTEE'S NAME AS ON BIRTH : PENNSYLVANIA
CERTIFICATE) :
:
:
APPEAL OF: S.F.F. :
:
:
: No. 600 WDA 2017
Appeal from the Order Entered March 14, 2017
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 113 of 2016
IN RE: ADOPTION OF D.N.L. : IN THE SUPERIOR COURT OF
(ADOPTEE'S NAME AS ON BIRTH : PENNSYLVANIA
CERTIFICATE) :
:
:
APPEAL OF: S.F.F. :
:
:
: No. 601 WDA 2017
Appeal from the Order Entered March 15, 2017
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 112 of 2016
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 27, 2017
S.F.F. (“Mother”) appeals from the orders granting the petitions filed
by R.L.L. (“Father”) and J.D.L. (“Stepmother”) and involuntarily terminating
Mother’s parental rights to her minor children, D.N.L., a female born in April
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*
Former Justice specially assigned to the Superior Court.
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of 2008, and D.L.L., a male born in April of 2009 (collectively, “Children”).1
Mother claims that the trial court erred in terminating her parental rights
under 23 Pa.C.S. § 2511(b). For the following reasons, we affirm.
The orphans’ court summarized the relevant factual background as
follows:
[Mother and Father] lived together with [Children] in
Radford, Virginia from their birth until the parents became
involved with Children and Youth Services in Virginia, at
which point [C]hildren were placed in foster care for
approximately one (1) year. When [Children] were
returned to the care of their biological parents, Father and
[Mother] had separated, with [Mother] residing in Virginia
and Father residing in Tennessee and subsequently,
Pennsylvania. The parents shared custody informally from
this point onward, with [Children] residing primarily with
[Mother] in the Commonwealth of Virginia for
approximately three (3) years, until March of 2014.
At this time, [Mother’s] then-paramour contacted the
Father and [Stepmother], requesting that they
immediately assume custody of [Children]. [Mother’s]
paramour asserted that this was necessary due to
[Mother’s] ongoing methamphetamine and other drug-
related issues, and her resulting inability to properly care
for [Children]. [Mother] produced a letter stating her
intention to transfer full custody of [Children] to Father
and [Stepmother], and the same was signed by [Mother]
and notarized on March 21, 2014. [Children] relocated to
Father’s residence in Westmoreland County, Pennsylvania,
where they have resided since, under the care of Father
and his wife.
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1
On May 10, 2017, this Court entered an order sua sponte consolidating
Mother’s two appeals – each challenging the orders terminating Mother’s
parental rights to Children – for a single decision. See Pa.R.A.P. 513.
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A Custody Order of Court was entered in Westmoreland
County on February 2, 2015 at Docket Number 2122 of
2014-D, between Father and [Mother]. The Order
provided for sole legal and primary physical custody of
[Children] to Father, with a daily phone call between 7:00
p.m. and 7:30 p.m. and supervised visitation provided to
[Mother]. [Mother] never challenged or attempted to
enforce any provision of this Order.
Mother’s contact with [Children] since their relocation to
Westmoreland County in March of 2014 has been sporadic
at best. From March of 2014 until February of 2015,
Father testified that [Mother] would call [Children]
inconsistently, often going weeks at a time without
contact. In this time period[,] Mother visited [Children]
approximately three (3) to five (5) times. Father stated
that [Mother] was often inattentive during these visits, and
would often spend significant amounts of time arguing with
her boyfriend or sleeping, although [Mother] blamed her
torpor on the long drive between Virginia and
Pennsylvania.
Subsequent to the February 2, 2015 Custody Order,
[Mother’s] contact continued to be sporadic, and Father
reports that [Mother] would often call at inappropriately
late times, with weeks and occasionally months between
phone calls. [Mother] also expressed to [Stepmother] that
she did not feel that she needed to be sober when
contacting [Children]. Father indicated that neither he nor
his wife indicated that they did or would have refused any
contact from [Mother], provided that she was sober at the
time. [Stepmother] noted that following these sporadic
contacts with [Mother], [Children] would often experience
short periods of acting out and/or bedwetting, which would
then have to be addressed in their therapy sessions.
[Mother’s] last in-person contact with [Children]
occurred in July of 2015, when she attended a visit with
[Children] at Father’s home. [Mother’s] last contact of any
sort with [Children] occurred on April 23, 2016. [Mother]
contacted [Children] via text message on that date, in
relation to D.L.L.’s birthday. Father testified to receiving
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no contact in any form from [Mother] since that date.
[Stepmother] corroborated this statement.
[Mother] testified that she attempted to make contact
with Father and [Stepmother] via Facebook Messenger
between December of 2015 and April of 2016.
[Stepmother] testified to some attempts at contact by
[Mother], however she stated that she did not find it
appropriate for [Mother] to talk to [Children] while she was
using illicit drugs, and [Mother] confirmed that she was
using drugs during a significant portion of this time period.
[Mother] did have text message contact during this time,
up until April 23, 2016, as indicated above. [Mother]
testified that she never petitioned the [c]ourt to enforce
any provision of her Custody Order during this time period
in order to reestablish regular contact with [Children].
[Mother] was subsequently incarcerated [at] New River
Valley Regional Jail in the Commonwealth of Virginia on
April 28, 2016. A detailed exploration of the charges and
the surrounding situation was conducted on the record.
During her incarceration, [Mother] claims to have written
letters to [Children], Father, and [Stepmother], which she
claims she provided to Father’s step-father’s current wife.
She stated that she requested that these letters be passed
along to Father for dissemination, as she was unable to
access Father’s address while in prison. Father and
[Stepmother] deny having ever received these letters.
Additionally, Father’s step-father [sic] testified to having
no knowledge of the contents of any correspondence
between [Mother] and his wife.
Father testified credibly that [Children] do not inquire
after [Mother] or bring her up in conversation, and they
have not done so since phone contact ceased completely.
Father stated that D.L.L. previously expressed trepidation
when [Mother] came to visit, and that her visits made him
feel afraid. Father additionally stated that D.L.L. was even
“scared to death,” to the point of physically shaking, prior
to the February 16, 2017 hearing because he was afraid of
coming in contact with [Mother]. Father reports that
D.N.L. harbors a similar fear of [Mother], and that
[Children] have worked over the course of years in therapy
to overcome traumas that they incurred while in [Mother’s]
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primary custody. These traumas allegedly include being
locked in rooms by [Mother] and being taken to strangers’
houses while [Mother] and the individuals present used
various illicit substances. [Mother] denies these
allegations.
Father enrolled [Children] in mental health treatment in
July of 2014 to address their emotional and behavioral
issues. D.N.L has recently been successfully discharged
from her individual therapy, and D.L.L. is currently still
involved in the same. Father noted that the therapy has
been a success, and that [Children] are currently thriving.
[Children] currently have exceptional grades, with D.L.L.
obtaining straight As and D.N.L. obtaining As and Bs.
They are both involved in extracurricular activities, with
D.L.L. participating in baseball and D.N.L. participating in
cheerleading.
Orphans’ Ct. Op., 5/12/17, at 2-5.
On October 25, 2016, Father and Stepmother filed a joint petition to
involuntarily terminate Mother’s parental rights to Children.2 The trial court
appointed counsel for Children, referred to as the guardian ad litem.3 On
February 16, 2017, the orphans’ court held a hearing on the petition. The
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2
The Adoption Act required Father in his petition to involuntarily terminate
Mother’s parental rights to Children to “aver that an adoption is presently
contemplated [and] that a person with a present intention to adopt exists,”
and the record reflects that he complied with this requirement. See 23
Pa.C.S. § 2512(b); In re E.M.I., 57 A.3d 1278, 1285 (Pa. Super. 2012);
see also Pet. for Involuntary Termination of Parental Rights, 10/25/16, ¶ 8.
3
There is a distinction between counsel in a proceeding to terminate
parental rights, who must represent a child’s legal interests, and a guardian
ad litem, who represents a child’s best interests. See In re Adoption of
L.B.M., 161 A.3d 172, 181 (Pa. 2017). However, as set forth below, the
record here does not evince a conflict between Children’s legal interests and
their best interests.
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orphans’ court entered its findings of fact and orders terminating Mother’s
parental rights on March 14, 2017. On April 13, 2017, Mother filed her
timely notice of appeal and concise statement of errors complained of
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother presents the following issues for our review:
I. Whether the [orphans’] court erred as a matter of law in
granting the [p]etition for [i]nvoluntary [t]ermination of
[p]arental [r]ights regarding birth mother[ ]?
II. Whether the [orphans’] court erred as a matter of law
and abused its discretion in finding that no parent-child
bond existed between birth mother and [C]hildren?
III. Whether the [orphans’] court erred as a matter of law
by failing to consider whether the parent-child bond could
be severed without irreparable harm to [C]hildren?
Mother’s Brief at 4.
We review an appeal from the termination of parental rights in
accordance with the following standard.
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of
a petition for termination of parental rights. As in
dependency cases, our standard of review requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by
the record. In re: R.J.T., [ ] 9 A.3d 1179, 1190 ([Pa.]
2010). If the factual findings are supported, appellate
courts review to determine if the trial court made an error
of law or abused its discretion. Id.; [In re] R.I.S., 36
A.3d 567[, 572 (Pa. 2011) (plurality)]. As has been often
stated, an abuse of discretion does not result merely
because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett v.
Kia Motors America, Inc., [ ] 34 A.3d 1, 51 ([Pa.]
2011); Christianson v. Ely, [ ] 838 A.2d 630, 634 ([Pa.]
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2003). Instead, a decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike 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. R.J.T., 9 A.3d at 1190. 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
Atencio, [ ] 650 A.2d 1064, 1066 ([Pa.] 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
Termination of parental rights is governed by statute, 23 Pa.C.S. §
2511, which requires a bifurcated analysis. First, the orphans’ court must
examine the parent’s conduct. See, e.g., In re A.L.D., 797 A.2d 326, 339
(Pa. Super. 2002). The burden of proof is on the petitioner to establish by
clear and convincing evidence the existence of grounds for termination
under section 2511(a). In re J.L.C. 837 A.2d 1247, 1251 (Pa. Super.
2003). If termination is found by the orphans’ court to be warranted under
section 2511(a), it must then turn to section 2511(b), and determine if
termination of the parent’s rights is in the child’s best interest. In re
Adoption of R.J.S., 901 A.2d 502, 508 (Pa. Super. 2006). “If the court’s
findings are supported by competent evidence, we must affirm the court’s
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decision, even if the record could support an opposite result.” In re Z.P.,
994 A.2d 1108, 1116 (Pa. Super. 2010) (citation omitted).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to section 2511(a)(1), (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:
(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.
(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 notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(1), (2), & (b).
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Mother’s brief contains no argument regarding the trial court’s decision
under Section 2511(a). See Appellant’s Brief at 9. Because Mother makes
no attempt to develop a legal argument in support of her challenge under
subsection (a), we find it waived. See Chapman-Rolle v. Rolle, 893 A.2d
770, 774 (Pa. Super. 2006) (stating, “[i]t is well settled that a failure to
argue and to cite any authority supporting an argument constitutes a waiver
of issues on appeal” (citation omitted)).
We next consider the trial court’s determination under Section
2511(b). Mother argues that the orphans’ court abused its discretion and
erred as a matter of law because “[a]t no time during the hearing did
[Father and Stepmother] offer any expert evidence as to whether in fact a
bond did or did not exist between [Mother] and [Children].” Mother’s Brief
at 10. Mother asserts that a bond did exist between her and Children, and
terminating her parental rights would cause irreparable harm to Children.
Id. at 11-12.4 We disagree.
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4
Mother also suggests that the guardian ad litem was not convinced that it
was in Children’s best interest to sever their relationship with Mother.
Mother’s Brief at 10 (citing N.T., 2/16/17, at 218). However, the record
reveals that the guardian ad litem offered the following conclusions:
[Guardian ad litem]: . . . I had hoped that I could have
gotten more solid feedback from other professionals
involved in this case, which I could not. For whatever
reason, I’m not sure. But without that, I’m also not
convinced that it is in [Children’s] best interests to sever
the relationship with [Mother].
(Footnote Continued Next Page)
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It is well settled that
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, 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 subsection 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
_______________________
(Footnote Continued)
With that being said, I also feel that [Mother’s] sobriety is
quite limited at this point, with the majority of it having
been . . . obtained while she was incarcerated. [To the
court:] Do you want an opinion from me as to where I
stand ultimately?
THE COURT: Absolutely. That’s what your purpose is.
Thank you.
[Guardian ad litem]: Okay. Considering all the evidence,
I feel that it would be in [Children’s] best interest to do the
termination of parental rights, your Honor.
N.T. at 218-19.
We further note that the guardian ad litem has declined to file a separate
brief in these matters but joined Father and Stepmother’s appellee’s brief.
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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)
(citations and quotation marks omitted). This Court has repeatedly held that
expert testimony is not required for the orphans’ court to determine if there
is a positive bond between a parent and her children. See In re K.K.R.-S.,
958 A.2d 529, 533 (Pa. Super. 2008).
Instantly, the orphans’ court found that “there [was] no bond
whatsoever between [Mother] and [Children]” and that terminating Mother’s
parental rights to Children will not have “any negative effect on either child,
and indeed might further serve their stability with regard to mental health.”
Orphans’ Ct. Op. at 10. We conclude that the record supports the court’s
findings.
Father testified that D.L.L. was “scared to death” to attend the
termination hearing because “he didn’t want to be around [Mother].” N.T. at
36-37. Moreover, Father testified that Mother has not had any visits with
Children since July of 2015 or any telephone contact since April of 2016. Id.
at 59. Father also noted that during the few and sporadic visits Mother had
with Children prior to July of 2015, Mother did not engage with Children and
often spent her visitation time sleeping or with her boyfriend. Id. at 37.
Stepmother likewise testified that Children would react poorly to
contact or visits with Mother. Specifically, Stepmother indicated that
Children would wet the bed the night after a visit or telephone call with
Mother. Id. at 74. Children would also act out at school in the days
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following a visit from Mother. Id. at 74-76. Moreover, Stepmother testified
that she loves Children like they are her own and would like to adopt
Children. Id. at 78.
Both Father and Stepmother testified to their concerns that Mother
was using drugs when attempting to contact Children and during some of
her visits in 2014 and 2015. Stepmother, in particular, recounted an
incident when Mother appeared to be dozing off while driving with Children
in the car and later vomited at home.
Mother denied Father and Stepmother’s allegations that she was using
drugs when attempting to contact Children or during visits. Mother testified
that she was tired during some of her visits due to the long drive from
Virginia to Pennsylvania. She conceded that she got sick on one occasion,
but explained that it was due to the sugary snacks she had with Children
that day. Id. at 144-45. Mother recounted her activities with Children,
including watching movies, playing Disney board games, shopping at the
mall, and going out with Children around the neighborhood, and contradicted
Father and Stepmother’s testimony that they always supervised her visits
with Children. Id. at 141-42. Mother testified that Father and Stepmother
began refusing to answer her phone calls in July of 2015. Id. at 145-46.
Of particular note, the parties’ testimony established that Mother had
attempted to spend the summer of 2014 with Children in Virginia. Id. at 56.
However, shortly after Children arrived, Mother called Father and
Stepmother and requested that they bring Children back to Pennsylvania.
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Id. Approximately one month after this episode, Father placed Children into
therapy. Id. at 57. Children have responded well, resolving their
bedwetting problems, no longer acting out at school, and maintaining good
grades. Id. at 75-77.
Thus, there is support for the trial court’s determination that a
beneficial bond no longer existed between Mother and Children. Expert
testimony, therefore, was not required. See In re K.K.R.-S., 958 A.2d at
533. Moreover, given Father and Stepmother’s testimony, which the
orphans’ court found credible, the evidence presented supports a finding that
terminating Mother’s parental rights would best serve Children’s needs and
welfare under section 2511(b). See In re Z.P., 994 A.2d at 1116. Mother
is not capable of parenting Children safely due to her failure to remedy her
drug abuse for any appreciable amount of time. In addition, Children are
bonded with Father and Stepmother, with whom they have lived for the past
three years. It was within the discretion of the orphans’ court to conclude
that the benefits of permanency through adoption would outweigh whatever
harm Children might experience if their relationship with Mother ended. As
this Court has stated, “a child’s life cannot be held in abeyance while a
parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a
child’s need for permanence and stability to a parent’s claims of progress
and hope for the future.” In re Adoption of R.J.S., 901 A.2d at 513.
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Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Mother’s parental rights to
Children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2017
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