In Interest of: B.S. & M.S. Appeal of: M.M. mother

J-S08045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.S. IN THE : IN THE SUPERIOR COURT OF
INTEREST OF: M.S. : PENNSYLVANIA
:
:
APPEAL OF: M.M., NATURAL :
MOTHER :
:
:
: No. 1708 WDA 2017
Appeal from the Order September 22, 2017
In the Court of Common Pleas of Clearfield County Orphans' Court at
No(s): 3410-2017-OC,
3411-2017-OC
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 27, 2018
Appellant, M.M. (“Mother”), files this appeal from the order entered on
September 22, 2017, in the Clearfield County Court of Common Pleas, which
granted the petition to involuntarily terminate her parental rights to her minor
children, B.T.S., born in March of 2009, and M.D.S., born in December of
2012, (collectively, the “Children”), pursuant to 23 Pa.C.S.A. § 2511(a)(1),
and (b). After a careful review, we affirm.
On April 28, 2017, T.C.S. (“Father”) filed a petition for the involuntary
termination of Mother’s parental rights as to the Children, and on July 13,
2017, the matter proceeded to a hearing. Based on the testimony presented
at the hearing, the trial court found the following:
During the hearing in this case, it was established that
Mother and Father were involved in a relationship for a period in
excess of 10 years, and that Mother was incarcerated off and on
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* Former Justice specially assigned to the Superior Court.
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during that time beginning in 2009. As a result, the relationship
ended in 2014 when [B.T.S.] was six (6) years of age and [M.D.S.]
was two (2) years of age. Father has had primary physical
custody of both Children since the separation and has been the
sole caretaker for both Children. Father remarried on March 12,
2015, and the Children live in the home with him, Stepmother,
and two half siblings. Stepmother cares for the Children at home
while Father works.
Pursuant to a Custody Order dated March 23, 2016, Mother
had partial custody of both Children every other weekend for eight
(8) hours on Saturday and eight (8) hours on Sunday (no
overnights). However, Father testified that Mother did not
exercise her custody rights because she was incarcerated from
January 2015 through February 2016. During that time, Mother’s
only contact with the Children was through letters delivered to
Father by the maternal grandmother. After Mother’s release, she
maintained visitation with the [C]hildren in accordance with the
Custody Order for a short time, but this Court suspended contact
by Mother with [B.T.S.] on April 29, 2016[,] following a Children,
Youth, and Family Services [(“CYFS”)] report. Mother has been
incarcerated more than once since that time, and her current
incarceration at SCI Muncy began October 10, 2016.[1] In the few
months between incarcerations, Mother had limited contact with
the Children, and she has not had physical contact with [B.T.S.]
since April of 2016, or [M.D.S.] since May of 2016. Mother
admitted in testimony that she was released from incarceration
from August of 2016 until her most recent incarceration, but she
made no attempt to see the Children in those two months.
Mother also testified that her telephone was blocked from
SCI Muncy when she attempted to contact Father’s phone to speak
with the Children. Mother also testified that she has, in the past,
sent cards and presents to the Children through maternal
grandmother, who drives to Father’s home unannounced to
deliver the gifts because she believes Father has her phone
blocked as well. Father admits that he did block Mother’s calls in
the past while she was in the Clearfield County Jail following a
restraining order on Mother, but he stated he has no blocks on his
phone at this time.
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1As of the time of the hearing, Mother was serving a prison sentence of six
months to three years. N.T., 7/13/17, at 8.
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Trial Court Opinion, filed 9/22/17, at 3-4.
At the conclusion of the hearing, the trial court found that Father met
his burden of proving by clear and convincing evidence that Mother’s parental
rights should be terminated with regard to the Children pursuant to 23
Pa.C.S.A. § 2511(a)(1). Further, the trial court determined that the
termination of Mother’s parental rights would be in the best interests of the
Children pursuant to Section 2511(b). Accordingly, by order entered on
September 22, 2017, the trial court terminated Mother’s parental rights as to
the Children. Mother filed this timely notice of appeal.2
In an order entered on October 24, 2017, the trial court directed Mother
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b) within twenty-one days or face waiver of all
issues on appeal. On November 14, 2017, counsel filed the required concise
statement on Mother’s behalf. As Father does not assert prejudice from
Mother’s failure to file a concise statement contemporaneously with her notice
of appeal, and Mother complied with the trial court’s order to file a concise
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2 Despite being represented by counsel, Mother filed the instant appeal pro
se. She did not file a concise statement of errors complained of on appeal
with her notice of appeal. See Pa.R.A.P. 905(a)(2) (“If the appeal is a
children's fast track appeal, the concise statement of errors complained of on
appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal
and served in accordance with Rule 1925(b)(1).”).
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statement by a certain date, we do not find her issues waived. See In re
K.T.E.L., 983 A.2d 745, 747 (Pa.Super. 2009) (holding that there is no per se
rule mandating quashal or dismissal of a defective notice of appeal in
children’s fast track cases); Mudge v. Mudge, 6 A.3d 1031 (Pa.Super. 2011)
(same).
On appeal, Mother raises the following issues, which we set forth
verbatim:
1. Whether the court erred in terminating Mother’s parental rights
when evidence was presented that Mother was not evidencing
a settled purpose to relinquish her parental claims to the
[C]hildren[?]
2. Whether the court erred in terminating Mother’s parental rights
when it determined that Mother refused or failed to perform
any parental duties for the statutory period when the evidence
showed steps were taken to prevent Mother from having
contact with the [C]hildren[?]
Appellant’s Brief at 7.
In matters involving the involuntary termination of parental rights, our
standard of review is as follows:
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.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “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. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.
at [325-26, 47 A.3d at] 827. We have previously emphasized our
deference to trial courts that often have first-hand observations of
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the parties spanning multiple hearings. See In re R.J.T., [608
Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].
In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “The trial court is
free to believe all, part, or none of the evidence presented and is likewise free
to make all credibility determinations and resolve conflicts in the evidence.”
In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the
children.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of
Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)).
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In the case sub judice, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b) which provide, in relevant part,
the following:
§ 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.
***
(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) and (b) (bold in original).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to relinquish
parental claim to a child or a refusal or failure to perform parental
duties. In addition,
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
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the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
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 [the parent’s] 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 Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he 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
of [the parent’s] parental rights, to determine if the evidence, in
light of the totality of the circumstances, clearly warrants the
involuntary termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). Relevantly, our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In In re E.M. [a/k/a E.W.C. &
L.M. a/k/a L.C., Jr.], [533 Pa. 115,] 620 A.2d [481, 485
(1993)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional bonds
between the parent and child. The “utmost attention” should be
paid to discerning the effect on the child of permanently severing
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the parental bond. However, as discussed below, evaluation of a
child’s bonds is not always an easy task.
In re T.S.M., 620 Pa. 602, 71 A.3d 251, 267 (2013) (citation and quotation
omitted).
“[I]n cases where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. Accordingly, the extent of
the bond-effect analysis necessarily depends on the circumstances of the
particular case.” In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super.
2010) (citations omitted). “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). Moreover, the parent-child bond is “only
one of many factors to be considered by the court when determining what is
in the best interest of the child.” In re Adoption of C.D.R., 111 A.3d 1212,
1219 (Pa.Super. 2015) (quotation marks and quotation omitted).
Here, in involuntarily terminating Mother’s parental rights, the trial court
indicated, in relevant part, the following:
A parent’s responsibilities are not excused because they are
incarcerated and the fact that a parent is incarcerated does not,
in itself provide grounds for the termination of parental rights.
See In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817, 823
(2012). However, Mother’s incarceration, presently and in the
past, does not provide an excuse for the times she failed to pursue
visitation with the [C]hildren in her brief periods not incarcerated.
Additionally, Mother knows Father’s physical address and his
landline phone number, but she has made little attempt to
communicate with the Children since Mother’s and Father’s
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separation in 2014.[3] Mother has the responsibility of utilizing
whatever resources available while incarcerated to maintain a
relationship with [the] [C]hildren, but she has failed to do so.
Therefore, Mother’s conduct, regardless of her incarceration
status, is sufficient to fulfill the 23 Pa.C.S.A. § 2511(a)(1)
requirement that Mother failed to perform her parental duties for
a period of six (6) months or longer.
In addition to the conduct of the parent, the court must also
consider the needs and welfare of the [C]hildren, applying a best
interests of the children standard. . . Both Children have resided
with Father and Stepmother since 2015, and they have two half-
siblings in the home. Father provides for the family financially
while Stepmother cares for all of the children in the home. Both
Father and Stepmother provide for the [C]hildren’s emotional,
physical, and mental well-being, and it is clear to th[e] court that
Father and Stepmother are providing a life of structure and
stability for both Children.
Adversely, it is clear to th[e] court that Mother has not taken
the appropriate steps to maintain a relationship with the Children
in the past several years,[4] and has refused to perform even the
minimal parental duties available to her while incarcerated.
Mother has not made any legitimate attempt to contact her
children for the past 6 months or longer, while incarcerated or
otherwise.
Trial Court Opinion, filed 9/22/17, at 4-5 (footnotes added).
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3 Pointing to excerpts from her testimony, Mother contends the trial court
erred in failing to find Father interfered with Mother’s efforts to maintain a
relationship with the Children. See Appellant’s Brief at 13. However, as was
within its province, the trial court resolved the factual disputes in favor of
Father. See In re M.G. & J.G., supra.
4 With regard to the lack of a bond between Mother and the Children, the trial
court accepted the testimony of Father that, since 2014, Mother has had
limited contact with the Children and, since May of 2016, she has had
“absolutely no” contact with the Children. N.T., 7/13/17, at 16; Trial Court
Opinion, filed 9/22/17, at 3-4. See In re Adoption of J.M., supra (indicating
where there is no evidence of a bond between a parent and child, it is
reasonable to infer no bond exists).
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Based upon our review, we find no abuse of discretion and conclude the
trial court appropriately terminated Mother’s parental rights under 23
Pa.C.S.A. § 2511(a)(1) and (b). We, therefore, affirm the trial court’s order.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2018
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