In Re: A.L.C., Appeal of S.G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.L.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: S.G., MOTHER :
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:
:
: No. 1539 WDA 2019
Appeal from the Decree Entered October 2, 2019
In the Court of Common Pleas of Beaver County Orphans' Court at
No(s): CP-04-DP-0000038-2017
IN RE: A.D.G.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.G., MOTHER :
:
:
:
:
: No. 1540 WDA 2019
Appeal from the Decree Entered October 2, 2019
In the Court of Common Pleas of Beaver County Orphans' Court at
No(s): CP-04-DP-0000039-2017
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED MAY 6, 2020
S.G. (Mother) appeals from the October 2, 2019 decrees involuntarily
terminating her parental rights to her daughter, A.L.C., born in March of 2015,
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and her son, A.D.G.C., born in February of 2017 (collectively, Children).1
Upon review, we affirm.
On May 30, 2019, Beaver County Children and Youth Services (CYS)
filed petitions for the involuntary termination of Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (9), and (b). On July 22 and
23, 2019, the Honorable Mitchell Shahen2 held a hearing on the petitions,3
during which CYS presented the testimony of its caseworkers, Amy Frederic
and Eleanor Whittier. In addition, CYS introduced into evidence, and the court
admitted, ten exhibits consisting of Children’s dependency orders. Mother
was transported to the hearing from State Correctional Institution Cambridge
Springs, where she is incarcerated. Mother testified on her own behalf.
The record reveals that the juvenile court placed Children in the custody
of CYS on August 21, 2017, due to A.D.G.C., then six months old, suffering
an acute spiral fracture to his left humerus. Orphans’ Court Opinion,
11/12/19, at 4-5 (citing Adjudication and Disposition); N.T., 7/22/19, at 90.
____________________________________________
1 The Children’s natural father is A.C., who voluntarily relinquished his parental
rights during the proceeding on July 22, 2019. However, the certified docket
does not reveal that the orphans’ court issued decrees terminating A.C.’s
parental rights.
2 Judge Shahen also presided over the underlying dependency proceedings
starting with the first permanency review hearing on March 2, 2018.
3 During the hearing, Robert Dappenbrook, Esquire, served as Children’s
counsel, and Mollie Patterson, Esquire, served as Children’s guardian ad litem
(GAL).
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In addition, x-rays revealed that A.D.G.C. had six to seven broken bones that
were in various stages of healing. Orphans’ Court Opinion, 11/12/19, at 5.
On December 19, 2017, the court adjudicated Children dependent and
found A.D.G.C. to be a victim of “child abuse” pursuant to 23 Pa.C.S. § 6303
(Definitions). Children’s permanency goal was reunification. On March 7,
2018, the court ordered a concurrent goal of adoption. Permanency review
hearings occurred at regular intervals from March 2, 2018, until July 1, 2019,
when the court changed Children’s permanency goal to adoption.
On January 28, 2019, the juvenile court issued an aggravated
circumstances order against Mother due to her convictions of crimes related
to her physical abuse of A.D.G.C.4 Specifically, on November 1, 2018, Mother
was convicted of aggravated assault, simple assault, recklessly endangering
another person, and endangering the welfare of children. N.T., 7/22/19, at
74. Mother was sentenced to a term of incarceration of five to ten years.
N.T., 7/23/19, at 54.
In the aggravated circumstances order, the court directed that no efforts
be made to reunify Children with Mother. Likewise, in the permanency review
orders dated January 28, 2019, the court directed that no efforts be made
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4In addition to the subject proceedings and the underlying dependency cases,
Judge Shahen presided over Mother’s jury trial on her criminal charges.
Following Mother’s convictions, Judge Shahen imposed her sentence.
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toward reunification. In addition, the court offered Mother one final visit with
Children, which occurred in February of 2019, and then suspended all visits.
By decrees dated and entered September 12, 2019, the orphans’ court
involuntarily terminated Mother’s parental rights. For the purpose of
correcting a clerical error, the court amended the decrees and involuntarily
terminated Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(9), and (b). The court entered the amended decrees on or about October 2,
2019.
On October 10, 2019, Mother timely filed notices of appeal and concise
statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), which this Court consolidated sua sponte. The orphans’
court filed its Rule 1925(a) opinion on November 12, 2019.
Mother raises the following issues for our review:
1. Whether the [orphans’] court erred in finding that [Mother]
refused and/or failed to perform her parental duties, as [Mother]
did not make reasonable efforts to remain a part of Children’s
lives[?]
2. Whether the [orphans’] court erred in finding that [Mother]
refused to acknowledge that the injuries occurred or to assist in
determining how the injuries occurred[?]
3. Whether the [orphans’] court erred in finding that [Mother]
is not ready to take a protective stance with regards to [C]hildren
or attempt to remedy the issues that caused the initial
placement[?]
4. Whether the [orphans’] court erred in finding that the
conditions that led to the removal continue to exist[?]
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5. Whether the [orphans’] court . . . erred in finding that
[Mother] was not able or willing to remedy the conditions that led
to the removal[?]
6. Whether the [orphans’] court erred in finding that the
[t]ermination of [Mother]’s parental rights would not have a
detrimental effect on Children and would be in their best
interest[?]
7. Whether the [orphans’] court abused its discretion in
denying [Mother]’s request for recusal of the [t]rial [c]ourt [j]udge
on the basis that a conflict of interest existed[?]
Mother’s Brief at 5-6.
We review Mother’s issues according to the following:
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, 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
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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).
We need only agree with the orphans’ court as to any one subsection of
2511(a), as well as Section 2511(b), in order to affirm. See In re B.L.W.,
843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, in her concise
statements and her brief, Mother has failed to challenge the decrees under
Section 2511(a)(9). As such, Mother has waived any challenge to the decrees
under Section 2511(a)(9), and we affirm under this subsection. 5 See In re
M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2006) (concluding that the
appellant waived challenges regarding Sections 2511(a) and (b) by not
including those claims in her statement of questions presented and in failing
to develop an argument).
Even if Mother did not waive a challenge to the decrees under Section
2511(a)(9), we would conclude that the certified record supports the decrees
pursuant to this subsection, as well as Section 2511(b), which provide as
follows.
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5 Based on this disposition, to the extent Mother argues in her first, second,
third, fourth, and fifth issues that the orphans’ court abused its discretion in
terminating her parental rights pursuant to Section 2511(a)(1) and (2), we
do not review them.
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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:
...
(9) The parent has been convicted of one of the following
in which the victim was a child of the parent:
(i) an offense under 18 Pa.C.S. Ch. 25 (relating to
criminal homicide);
(ii) a felony under 18 Pa.C.S. § 2702 (relating to
aggravated assault);
(iii) an offense in another jurisdiction equivalent to an
offense in subparagraph (i) or (ii); or
(iv) an attempt, solicitation or conspiracy to commit an
offense in subparagraph (i), (ii) or (iii).
...
(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)(9) and (b).
Instantly, the record includes a verdict sheet revealing that, on
November 1, 2018, a jury found Mother guilty of felony criminal charges under
18 Pa.C.S.A. § 2702(a)(1) and (9). See GAL Exhibit “A.” In addition, Mother
concedes that her “criminal charges were directly stemming from the alleged
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abuse/injuries of the minor child, A.D.G.C.” Mother’s Brief at 9. Thus, we
would conclude that Mother’s conduct warranted termination under Section
2511(a)(9)(ii).
With respect to Section 2511(b), Mother baldly asserts in her sixth issue
that she has a parent-bond with Children that, if terminated, “would
irreparably harm the mental well-being of” Children. Mother’s Brief at 24. We
disagree.
This Court has stated, “[i]ntangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs and welfare of the child.”
In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted).
Further, 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. (citation omitted). However, “[i]n cases where there
is no evidence of any bond between the parent and child, it is reasonable to
infer that no bond exists. The extent of any bond analysis, therefore,
necessarily depends on the circumstances of the particular case.” In re
K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted). This
Court has explained:
The mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.
Super. 2008) (trial court’s decision to terminate parents’ parental
rights was affirmed where court balanced strong emotional bond
against parents’ inability to serve needs of child). Rather, the
orphans’ court must examine the status of the bond to determine
whether its termination “would destroy an existing, necessary and
beneficial relationship.” In re Adoption of T.B.B., 835 A.2d 387,
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397 (Pa. Super. 2003). As we explained in In re A.S., 11 A.3d
473, 483 (Pa. Super. 2010),
[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 N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Our Supreme Court has 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.” In
re T.S.M., 71 A.3d at 268. The Court directed that, in weighing the bond
considerations pursuant to Section 2511(b) “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. Court observed,
“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
In this case, the orphans’ court found that involuntarily terminating
Mother’s parental rights would not have a detrimental effect upon Children.
The testimonial evidence supports the court’s finding, as follows.
At the time of their placement in August of 2017, A.D.G.C. was six
months old, and A.L.C. was nearly two and one-half years old. CYS initially
scheduled visits between Mother and Children three days per week for two
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hours at each visit. N.T., 7/22/19, at 57. In June of 2018, Mother requested
that she visit with Children two days per week, instead of three, for a total of
six hours. Id. at 57-58. Eleanor Whittier, the CYS caseworker, testified that
Mother attended 60% of the visits offered prior to her incarceration on
November 1, 2018. N.T., 7/23/19, at 44. While incarcerated, Mother had
seven visits with Children. Id. at 43. Mother’s final visit with Children was
on February 4, 2019, pursuant to the permanency review orders on January
28, 2019, granting her one final visit. N.T., 7/22/19, at 58. As such, by the
time of the subject proceeding, Children had not seen Mother in more than
five months.
The CYS caseworkers, Amy Frederick and Eleanor Whittier, testified that
they observed a bond between A.L.C. and Mother. N.T., 7/22/19, at 60; N.T.,
7/23/19, at 21. However, Ms. Frederick testified, “it has been . . . over five
months since the last visit, so I’m not sure where the level of bond would be
at this time.” N.T., 7/22/19, at 60. With respect to A.D.G.C., the caseworkers
did not testify with respect to a bond between him and Mother. In any event,
Ms. Frederick testified that A.D.G.C. is “a very easy-going, social child, and he
smiles and interacts and socializes and raises his hands to almost any adult
both familiar and unfamiliar.” Id. at 61. In addition, Ms. Whittier testified on
inquiry by the orphans’ court:
THE COURT: Did you notice after the visits stopped with [M]other
in February after that last visit whether [C]hildren were upset,
whether they had . . . required any special attention, things like
that?
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[A.] No, they did not.
N.T., 7/23/19, at 48. Further, with respect to A.L.C., the older child, Ms.
Whittier testified on cross-examination by Mother’s counsel:
Q. To the best of your knowledge has [A.L.C.] ever mentioned
missing [Mother] or wanting to see her?
...
A. So I am not there whenever she has talked about visits with
[M]other. . . . [The foster mother] has told me that [A.L.C.] has
not asked about visits. However, there have been times when she
has asked about seeing Miss Shannon, which would be the Project
Star worker [who supervised visits], or the previous Project Star
worker, Miss Faith.
N.T., 7/23/19, at 37-38. The foregoing evidence supports the court’s
conclusion that involuntarily terminating Mother’s parental rights will not have
a detrimental effect upon Children.
In addition, the evidence reveals that Children have resided in a pre-
adoptive foster home since June of 2018. N.T., 7/22/19, at 77; N.T., 7/23/19,
at 17. Ms. Whittier, who frequently visited Children in their foster home,
testified that Children are bonded to their foster parents. N.T., 7/23/19, at
13. Specifically, Ms. Whittier testified on direct examination:
Q. What interactions have you observed between [C]hildren in the
foster parents?
...
A. So in regards to their bond based on my observations
[C]hildren are excited to see the family. . . . They look to [their
foster parents] for guidance and reassurance. When [C]hildren
are upset[,] they seek out [their foster parents].
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They are excited to show [their foster parents] their different
achievements, and they’re learning new skills.
They’re not only comfortable in their home, in the home, but
they’re also thriving there. . . .
N.T., 7/23/19, 18.
Moreover, the court found that the safety of A.D.G.C. “would be severely
at risk” if he was returned to the care of Mother. Orphans’ Court Opinion,
11/12/19, at 40. The court explained, in part, “Mother did not provide any
credible explanations for the injuries to A.D.G.C. Mother refused to
acknowledge six of the seven fractures even existed. Mother did nothing to
identify what caused such parenting failures and failed to accept that they
were the result of her actions.” Id.
Indeed, Mother testified that A.L.C., who was nearly two and one-half
years old at the time of the incident, caused A.D.G.C.’s spiral fracture to his
humerus by “tugging on his arm.” N.T., 7/23/19, at 92. In addition, with
respect to the additional fractures sustained by A.D.G.C., Mother denied that
they existed. Id. at 79. Mother subsequently stated that she “was never
aware of no other injuries.” Id. at 80. Based on the foregoing, we discern no
abuse of discretion by the orphans’ court in concluding that the involuntary
termination of Mother’s parental rights serves the developmental, physical,
and emotional needs and welfare of Children pursuant to Section 2511(b).
In Mother’s final issue, she argues that the orphans’ court abused its
discretion in denying her motion for recusal. Specifically, Mother asserts, “[A]
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conflict of interest was present, due to the co-mingling of her criminal case, .
. . post-sentencing motions,[6] dependency and termination.” Mother’s Brief
at 19. We disagree.
We review the order denying Mother’s motion for recusal for an abuse
of discretion, and we “extend extreme deference” to the court’s decision.
Vargo v. Schwartz, 940 A.2d 459, 471 (Pa. Super. 2007). This Court has
explained:
A trial judge should recuse himself whenever he has any doubt as
to his ability to preside impartially . . . or whenever he believes
his impartiality can be reasonably questioned. It is presumed that
the judge has the ability to determine whether he will be able to
rule impartially and without prejudice, and his assessment is
personal, unreviewable, and final. Where a jurist rules that he or
she can hear and dispose of a case fairly and without prejudice,
that decision will not be overturned on appeal but for an abuse of
discretion. The party requesting recusal bears the burden of
producing evidence that establishes bias, prejudice, or unfairness.
This evidence must raise a substantial doubt as to the jurist’s
ability to preside impartially.
In re Bridgeport Fire Litigation, 5 A.3d 1250, 1254 (Pa. Super. 2010)
(citations omitted).
By way of background, before any evidence was presented at the
commencement of the involuntary termination proceeding on July 22, 2019,
Mother’s counsel requested on the record in open court that the orphans’ court
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6 Mother explains in her Brief that she filed post-sentence motions, and “Re-
sentencing on one count was granted by the court. Mother’s conviction is
currently on appeal with this Court.” Mother’s brief at 12. Our review reveals
that Mother has an appeal pending from the order denying her post-sentence
relief and the re-sentencing order, which is docketed at 1129 WDA 2019.
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recuse itself. Mother’s counsel stated as follows, in part: the same [c]ourt
that heard the criminal action in which those charges are intertwined with this
dependency case. The allegations for the criminal case are the same
allegations that are here that were founded on aggravated circumstances and
got us to an involuntary termination hearing.
In addition to that this [c]ourt is hearing . . . resentencing of my
client. We feel that there is a substantial conflict of interest that
is in this case, and as such, we are requesting that this involuntary
termination hearing be heard by a different Judge just so that we
can eliminate any type of potential conflict that could raise an
issue throughout the duration of the involuntary termination
hearing.
N.T., 7/22/19, at 18.
The orphans’ court denied Mother’s motion for recusal on the record in
open court. See N.T., 7/22/19, at 25. In so doing, the court specifically
explained that the criminal trial was a jury trial; therefore, it was the jury, not
the court, who made the factual findings. Id. at 22. The court emphasized,
“The issues in this case . . . arise from the [involuntary termination] petition.
. . . [N]one of these [allegations] require me to make findings similar to the
elements of the crimes for which [Mother] was convicted.” Id. The court
explained:
My job is to take the evidence that is presented in this case today
or whatever other day there is and not consider the other things
to the extent that they’re not [in] evidence. . . . And if I couldn’t
do that, I would stop my analysis right here, and I would ask the
court administrator to assign another Judge. . . .
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I also don’t feel that . . . just generally if the public looked at this
it would impugn the integrity of the [c]ourt. There . . . is nothing
that will prevent me from just focusing on what needs to be done
in this case.
Id. at 24-25.
In its Rule 1925(a) opinion, the court applied the law to the facts of this
case, stating:
There is no support for Mother’s allegation that the [orphans’]
court’s involvement in Mother’s criminal trial, sentencing, or prior
dependency proceedings demonstrates any bias or prejudices.
See Arnold v. Arnold, 847 A.2d [674,] 681 [(Pa. Super. 2004)]
(holding that past “Adverse rulings alone do not establish the
requisite bias warranting recusal, especially where the trial judge’s
rulings are legally proper.”); In re Quick, 559 A.2d 42, 46 (Pa.
Super. 1989) (“It is unsupportable that an experienced trial judge
is incapable of making factual determinations and legal findings in
regard to the same child at different hearings . . . without being
subject to bias or prejudice.”). Furthermore, any knowledge of
the parties that this Jurist gained by presiding over the criminal
trial and/or dependency proceedings was not detrimental to this
case. Regardless of which trial judge presided over the trial
and/or sentenced Mother, the fact of Mother’s incarceration on the
charges involving the abuse to the child at issue in the instant
case would have been known at the termination hearing.
Additionally, this Jurist’s involvement with the Child[ren]’s goal
change, aggravated circumstances hearing, and [d]ependency
hearings are appropriate in termination proceedings.
...
No one is in a better position to determine whether the
parties have fulfilled their mutual responsibilities toward
these goals than the Juvenile Court Judge who was
involved with the child from the beginning. A new judge
will not have the benefit of recall of hearings, reports and
directions not fully detailed in the cold or abbreviated
reports and records presented at the termination
proceeding. That is not to say these recollections will be
the basis for the termination decision, which must stand on
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its own evidence and be established by clear and
convincing evidence. Rather, it will assure the record is
full and complete so that termination will not be granted if
the agency is overreaching, or termination won't be denied
because of a pro forma presentation.
In re Quick, 559 A.2d [at 47]. . . .
Orphans’ Court Opinion, 11/12/19, 47-48. Based on the foregoing, we discern
no abuse of discretion by the orphans’ court in denying Mother’s request for
recusal. Accordingly, we affirm the decrees involuntarily terminating Mother’s
parental rights.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2020
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