In Re: R.J.S., Appeal of: D.M.A.S.

J-S07001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R.J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.M.A.S., MOTHER :
:
:
:
:
: No. 2899 EDA 2022
Appeal from the Decree Entered October 21, 2022
In the Court of Common Pleas of Bucks County Orphans' Court at No(s):
2022-A9037
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 21, 2023
Appellant, D.M.A.S. (“Mother”), appeals from October 21, 2022 decree
entered in the Bucks County Orphan’s Court that terminated her parental
rights concerning thirteen-year-old R.J.S. (“Child”). Upon careful review of
the record, we reverse the involuntary termination of parental rights.
Mother is the biological mother of Child, born in January 2010. Born
premature at a gestational age of 25 weeks, Child suffers from significant
medical issues, which require skilled nursing care for 18-19 hours per day.1
He is non-ambulatory, non-verbal, and diaper-dependent.
____________________________________________
1 The medical issues include “a brain stem injury, cerebral palsy, chronic lung
disease, gastroesophageal reflux disease, a feeding tube, a bleeding disorder,
vision and hearing impairment[,] significant developmental delays[, and] a
seizure disorder related to his cerebral palsy.” Tr. Ct. Op., 1/25/23, at 2, 10.
J-S07001-23
Mother also has a “number of very serious medical conditions.”2 Since
April 2019, Mother has resided at a skilled nursing facility for treatment of
injuries sustained in a motorcycle accident and her other medical conditions.
She receives assistance with daily living activities, including moving from bed
to wheelchair. The nursing facility indicated that she should not be placed in
a less restrictive residential setting until “she can demonstrate the ability to
toilet herself.”3
In regard to custody, Child lived with Mother until September 2018,
when the court entered a shelter care order. Due to her hospitalizations
Mother was unable to attend the shelter care hearing or the December 2018
dependency hearing at which the court adjudicated Child dependent and
placed him in the legal and physical custody of Bucks County Children and
Youth Social Services Agency [“CYS”]. Since November 2018, Child has
resided with his foster mother who is a pediatric nurse. She and another
pediatric nurse, “have expressed interest as an adoptive resource for him.”4
During her hospitalization, Mother has engaged in virtual visits with Child
____________________________________________
2 Tr. Ct. Op. at 8. The trial court found that Mother’s “personal and medical
stability became worse in 2018 when she tested positive for drug use and was
repeatedly hospitalized for several very serious medical conditions[;]” her
conditions include “Parkinson’s Disease, Type 1 Diabetes, Depressive
Episodes, Anxiety Disorder, Altered Mental Status, Chronic Pain Syndrome,
Lack of Coordination, Muscle Weakness, Von Willebrand’s Disease, and
Incontinence.” Id.
3 Id. at 5.
4 Id.
-2-
J-S07001-23
approximately twice a week, where Mother communicates with Child “by
praying, singing, or playing the tambourine, and he responds by tapping or
clapping his hands or by shaking his head.”5
In April 2022, when Child was twelve and had been in foster care for
over three years, CYS sought termination of Mother’s parental rights.6 On
May 3, 2022, the court appointed a guardian ad litem (“GAL”) to represent
Child in the termination proceedings and to assess whether a conflict existed
between the best interest and the legal interest of Child. In her subsequent
motion, the GAL, who had served as Child’s GAL since August 2018, averred
that Child was “not capable of directing representation by expressing his
objectives” due to his developmental delays.7 Accordingly, the GAL asserted
that there was no conflict of interest in representing both Child’s best interest
and legal interest. On May 24, 2022, the court appointed the GAL to represent
Child’s best interest and legal interest. A GAL also represented the best
interest of Mother, while her counsel represented her legal interest.
The court presided over a hearing on October 19, 2022. Mother testified
regarding, inter alia, her virtual visits with Child and her memories of caring
for Child prior to 2018. Mother also claimed that she intended to leave the
skilled nursing facility and to move with Child to Florida to live with her father.
____________________________________________
5 Tr. Ct. Op. at 11 (citing N.T., 10/19/22, at 52-53).
6CYS also sought termination of the parental rights of Child’s biological father,
who CYS has been unable to identify.
7 Motion of the Appointment of Counsel, 5/5/22, at 2.
-3-
J-S07001-23
CYS presented the testimony of the unit manager at Mother’s skilled
nursing facility, the CYS supervisor responsible for Child’s case, and Child’s
CYS caseworker. This testimony focused upon the medical conditions of
Mother and Child, with limited discussion of Child’s current living situation,
other than that the home was appropriate. The testimony did not address
Child’s relationship or bond with Mother.
Following testimony, Mother’s GAL argued that “it would be beyond
[Mother’s] physical capability and her best interest to be the primary or even
a partial caretaker for him[,]” despite her “good attitude” and “optimism.”8
Child’s GAL also opined that it was in Child’s “best interest and legal interest
that [Mother’s] parental rights be terminated.”9
On October 21, 2022, the trial court entered separate orders terminating
Mother’s and the biological father’s parental rights to Child and awarding
custody to CYS. The orders did not detail the grounds for termination under
Section 2511, which the court subsequently set forth in its Pa.R.A.P. 1925(a)
Opinion, opining that “clear and convincing evidence supported the decision
to terminate Mother’s parental rights under [Section] 2511(a)(5) and
(a)(8).”10 The court additionally found that Child’s “future developmental,
____________________________________________
8 N.T. at 83.
9 N.T. at 84.
10 Tr. Ct. Op. at 9.
-4-
J-S07001-23
physical, medical and emotional needs are best served through the
termination of her parental rights pursuant to subsection 2511(b).”11
On November 21, 2022, Mother’s counsel filed a Notice of Appeal and a
Statement of Intent to File an Anders Brief in Lieu of Statement of Errors
Complained of on Appeal, pursuant to Pa.R.A.P. 1925(c)(4). On the same
day, the trial court ordered Mother to file a Rule 1925(b) statement. Counsel
complied, and the court filed a responsive Rule 1925(a) Opinion.12
In her counseled brief to this Court, Mother raises the following issue:
Whether the lower court abused its discretion and erred as a
matter of law by involuntarily terminating Mother’s parental rights
when the Agency failed to present clear and convincing evidence
that termination would best serve[] the needs and welfare of the
child in accordance with 23 Pa.C.S. § 2511(a)(5), (8) and
§ 2511(b).
Mother’s Br. at 4.
A.
“When reviewing a trial court’s decision to grant or deny a termination
of parental rights petition, an appellate court should apply an abuse of
discretion standard, accepting the findings of fact and credibility
determinations if they are supported by the record, and reversing only if the
trial court made an error of law or abused its discretion.” In re D.C.D., 105
A.3d 662, 670–71 (Pa. 2014). We will find an abuse of discretion “only upon
____________________________________________
11 Id. at 11.
12 Notwithstanding counsel’s initial Statement of Intent to File an Anders
Brief, counsel filed an advocate’s brief with this Court on Mother’s behalf.
-5-
J-S07001-23
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will.” Id. (citation omitted). We defer to the determination of the trial courts
that “have first-hand observations of the parties spanning multiple hearings.”
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Parents have a fundamental right regarding the care, custody, and
control of their children. See In re Adoption of L.A.K., 265 A.3d 580, 591
(Pa. 2021). In light of this fundamental right, the party seeking termination
of parental rights has the burden to “show by clear and convincing evidence
that termination meets the needs and welfare of the children[.]” In re E.M.,
620 A.2d 481, 485 (Pa. 1993).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights and requires a bifurcated analysis. First, the
trial court must consider the grounds for termination under Section 2511(a),
which focus “on the conduct of the parent.” In re Adoption of A.C., 162
A.3d 1123, 1128 (Pa. Super. 2017) (citation omitted). In the instant case,
the court found grounds for termination under Section 2511(a)(5) and (a)(8):
(5) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency for a
period of at least six months, the conditions which led to the
removal or placement of the child continue to exist, the parent
cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which led to the
removal or placement of the child within a reasonable period of
time and termination of the parental rights would best serve the
needs and welfare of the child.
****
-6-
J-S07001-23
(8) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency, 12
months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or placement
of the child continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
23 Pa.C.S. § 2511(a)(5), (8).
If the court finds grounds for termination under Section 2511(a), it then
considers whether termination serves the needs and welfare of the child under
to Section 2511(b):
(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(b).
The “needs and welfare of the child” are requisite considerations for
Section 2511(a)(5) and (8), as well as Section 2511(b). 23 Pa.C.S.
§ 2511(a)(5), (a)(8), (b); see In re Adoption of R.J.S., 901 A.2d 502, 514
(Pa. Super. 2006) (addressing “needs and welfare” pursuant to Section
2511(a)(8) and (b)). The Supreme Court has long recognized that the
evaluation of the needs and welfare of children requires consideration of the
emotional bond between children and their parents and the effect on the child
of severing the bond. See In re E.M., 620 A.2d at 483 (reversing a
-7-
J-S07001-23
termination of parental rights where the trial court failed to consider the
emotional bond between parent and child). However, “[n]othing in our case
law dictates that the bond between a child and parent must predominate over
all other needs and welfare considerations.” Interest of M.E., 283 A.3d 820,
839 (Pa. Super. 2022). “Instead, after ascertaining the nature and status of
the bond and effect on the child of severing it, the [trial] court must weigh
any pain from breaking the bond against other considerations as to what result
serves the child’s needs and welfare.” Id. Nevertheless, where a trial court
does not address the bond and the effect on the child of terminating the bond,
this Court is constrained to reverse. In re Termination of C.W.S.M., 839
A.2d 398, 404–05 (Pa. Super. 2003).
B.
Mother challenges the trial court’s assessment of Child’s needs and
welfare under Subsections 2511(a)(5) and (8) and Subsection 2511(b), which
she argues all require consideration of a child’s bond with the parent. She
asserts that the record in this case “is devoid of any evidence concerning the
effect that termination will have on [the] bond” between Child and Mother.
Mother’s Br. at 13. After careful review, we find that the trial court failed to
make a determination of the “needs and welfare” of Child because it did not
consider whether severing Child’s bond with Mother will be detrimental to
Child, so we are constrained to reverse .
Specifically, we conclude that the record lacks evidence or analysis
regarding whether Child has the capacity to form a bond with Mother, the
-8-
J-S07001-23
strength of such bond, and the effect that severance of the bond would have
on Child. Indeed, the hearing transcript does not mention the term “bond” or
“relationship,” and none of the witnesses testified as to Child’s relationship
with Mother.
While the trial court opined that it was “clear to the [c]ourt that there is
a connection between Mother and Child[,]” it did not address the potential
effect of severance of the bond on Child. Tr. Ct. Op. at 11. Instead, the court
opined that the relationship could continue following termination of Mother’s
parental rights:
Although Mother has this remote communication bond with [Child]
the Court found that the termination of Mother’s parental rights
would not destroy this relationship or prevent it from continuing
in the future. Furthermore, the Court foresees no reason why the
virtual visits cannot continue — which provide the opportunity for
continued remote communication between Mother and Child while
further ensuring [Child] receives the crucial 24/7 medical and
physical care and stability he requires.”
Id. This analysis fails to comply with our precedent requiring consideration
of the extent of a bond between Child and Mother prior to the termination of
parental rights. See Interest of M.E., 283 A.3d at 836–37.
While the court may ultimately determine that any potential harm from
terminating the bond between Child and Mother is outweighed by other
aspects of Child’s needs and welfare, it must first determine whether a bond
exists and whether the Child would suffer harm due to severance of the bond
in evaluating Child’s needs and welfare under Subsection 2511(a)(5), (a)(8),
-9-
J-S07001-23
and (b) Accordingly, we reverse the decree terminating Mother’s parental
rights, but do so without prejudicing CYS’s right to file another petition.
Decree reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2023
- 10 -