In the Int. of: P.S.-Q.S.-L., Appeal of: D.L. ( 2022 )


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  • J-S38018-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: P.S.-Q.S.-L.,          :   IN THE SUPERIOR COURT OF
    A MINOR                                    :        PENNSYLVANIA
    :
    :
    APPEAL OF: D.L., MOTHER                    :
    :
    :
    :
    :   No. 940 WDA 2021
    Appeal from the Decree Entered June 4, 2021
    In the Court of Common Pleas of Beaver County Orphans' Court at
    No(s): 3003-2021,
    CP-04-DP-0000014-2020
    IN THE INTEREST OF M.D.V.M., A             :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
    :
    :
    APPEAL OF: D.L., MOTHER                    :
    :
    :
    :
    :   No. 941 WDA 2021
    Appeal from the Decree Entered June 4, 2021
    In the Court of Common Pleas of Beaver County Orphans' Court at
    No(s): 3004-2021,
    CP-04-DP-0000013-2020
    BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*
    MEMORANDUM BY DUBOW, J.:                             FILED: JANUARY 25, 2022
    D.L. (“Mother”) appeals from the Decrees entered June 4, 2021, in the
    Court of Common Pleas of Beaver County, which involuntarily terminated her
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-S38018-21
    parental rights to her sons, M.D.V.M., born in June 2016, and P.S.-Q.S.-L.,
    born in February 2020 (collectively, “Children”).1 Mother assails the evidence
    underlying the Orphans’ Court’s decision, but we conclude the record supports
    the court’s findings and affirm.
    SUMMARY OF FACTS AND PROCEDURAL HISTORY
    We take the following factual and procedural history from the Orphans’
    Court’s opinion and our review of the record. Beaver County Children and
    Youth Services (“CYS”) has a long history of involvement with Mother dating
    back to 2011. Mother had eight children at the time of these proceedings and
    was pregnant with her ninth. Significantly, the record indicates that at least
    the last four of Mother’s children were born with drugs or alcohol in their
    system, including M.D.V.M., his two younger siblings who are not involved in
    this appeal, and P.S.-Q.S.-L. CYS began providing general protective services
    for the family after M.D.V.M.’s birth in June 2016, but Mother continued to
    abuse substances.
    CYS obtained custody of Children after P.S.-Q.S.-L.’s birth in February
    2020. P.S.-Q.S.-L. was born with cocaine and marijuana in his system, and
    Mother refused to attend inpatient substance abuse treatment. Mother also
    suffered from mental health concerns and lacked stable housing. The Juvenile
    Court issued verbal emergency protective custody orders on March 16, 2020,
    ____________________________________________
    1 The Orphans’ Court also entered a Decree terminating the parental rights of
    M.D.V.M.’s father, J.B., involuntarily. J.B. did not appeal. P.S.-Q.S.-L.’s father
    is deceased.
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    which removed Children from Mother’s care, and written orders dated March
    17, 2020, which confirmed the verbal orders. A shelter care hearing occurred
    on March 17, 2020, and the court ordered that continued placement outside
    of Mother’s care was necessary. The matter proceeded to an adjudication and
    disposition hearing on April 13, 2020, and the court entered orders dated April
    15, 2020, adjudicating Children dependent. The court directed once again
    that Children would remain placed outside of Mother’s care and designated
    their permanent placement goals as return to parent or guardian.2 At the time
    of the hearing, M.D.V.M. was three-and-a-half years old, and P.S.-Q.S.-L. was
    two months old. Although Children initially resided in separate foster homes,
    M.D.V.M. went to live in the same kinship foster home as P.S.-Q.S.-L. in June
    2020, and they have remained there together ever since.
    After Children’s adjudications of dependency, Mother made little effort
    to reunify with them. Her reunification goals included obtaining substance
    abuse and mental health treatment and maintaining stable housing. Mother
    attended inpatient substance abuse treatment beginning on March 20, 2020,
    but she left against medical advice on April 4, 2020. Her only substance abuse
    treatment after that was a twelve-hour relapse prevention program in June
    2020. Mother repeatedly failed to comply with drug screens, failed to attend
    mental health treatment consistently, and moved from place to place. She
    ____________________________________________
    2Mother appealed the orders, and this Court affirmed on October 15, 2020.
    See In the Interest of P.L., 
    241 A.3d 428
     (Pa. Super. 2020) (unpublished
    memorandum).
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    J-S38018-21
    was also incarcerated briefly in July 2020. Critically, Mother failed to attend
    available supervised visitation and had minimal contact with Children. Mother
    visited Children informally through their foster mother in June 2020, and then
    visited them only once during the next seven months, which was another
    informal visit in December 2020. Mother also had phone contact with Children
    approximately once per month.
    The Juvenile Court conducted a permanency review hearing on January
    5, 2021. Because of Mother’s noncompliance, CYS requested that the court
    change Children’s goals from return to parent or guardian to adoption. The
    court entered orders changing Children’s goals dated January 6, 2020.3 Only
    after the court entered its goal change orders did Mother’s compliance begin
    to improve, in that she obtained substance abuse treatment and reached out
    to Children’s foster mother for more consistent visits with Children.
    On January 19, 2021, CYS filed Petitions to terminate Mother’s parental
    rights to Children involuntarily. The Orphans’ Court4 conducted a hearing on
    the Petitions on March 23, 2021, at which time M.D.V.M. was four-and-a-half
    years old and P.S.-Q.S.-L. was one year old. At the hearing, CYS presented
    testimony from Mother, as on cross-examination; Children’s foster mother,
    ____________________________________________
    3 Mother appealed a second time, and this Court affirmed the goal change
    orders on July 16, 2021. See In the Interest of P.S.-Q.S.-L., 
    260 A.3d 148
    (Pa. Super. 2021) (unpublished memorandum).
    4The Honorable Mitchell Shahen served as the Juvenile Court and Orphans’
    Court in this matter.
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    Z.S.; and CYS caseworker, Susan Willy.5 On June 4, 2021, the court entered
    Decrees terminating Mother’s parental rights to Children involuntarily, as well
    as Findings of Fact, citing 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b).
    Mother failed to appeal within the requisite thirty days. See Pa.R.A.P.
    903(a). On July 7, 2021, Mother filed a Petition for permission to appeal nunc
    pro tunc in this Court, averring she miscalculated the end of the appeal period
    by one day. This Court entered an order on July 20, 2021, dismissing Mother’s
    petition but explaining she could request permission to appeal in the Orphans’
    Court. Mother complied, and the Orphans’ Court granted her permission to
    appeal nunc pro tunc by Order entered August 4, 2021. Mother filed Notices
    of Appeal, along with Concise Statements of Errors Complained of on Appeal
    pursuant to Pa.R.A.P. 1925(a)(2)(i), that same day. CYS filed an application
    to consolidate Mother’s appeals in this Court on September 1, 2021, and we
    entered an order granting consolidation on September 16, 2021.6
    ____________________________________________
    5 Mother was represented by counsel during the termination proceedings. A
    single guardian ad litem represented both Children during the proceedings,
    while the Court appointed separate legal counsel for M.D.V.M.
    6 Mother filed two Notices of Appeal nunc pro tunc, with each Notice of Appeal
    corresponding to one of the two Children involved in this appeal and included
    the docket numbers from both Children’s adoption and dependency matters.
    This Court filed orders directing Mother to show cause as to why these appeals
    should not be quashed for failing to comply with Pa.R.A.P. 341, as interpreted
    in Commonwealth v. Walker, 
    185 A.3d 969
    , 976-77 (Pa. 2018). Mother
    responded that she intended only to appeal from the termination decrees, as
    evidenced by her annexation of those decrees to her notices of appeal.
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    Mother raises a single issue for our review: “Whether the [Orphans’
    C]ourt erred in finding a basis to terminate Mother’s parental rights under 23
    Pa.C.S. [§] 2511(a)(1), 2511(a)(2), and 2511(a)(5) when [CYS] failed to
    prove these grounds by clear and convincing evidence[?]” Mother’s Br. at 5.7
    Standard and Scope of Review
    When reviewing a Decree involuntarily terminating parental rights, this
    Court must accept the findings of fact and credibility determinations of the
    Orphans’ Court if the record supports them. In re T.S.M., 
    71 A.3d 251
    , 267
    (Pa. 2013). If the record supports the court’s factual findings, we must then
    consider whether the court committed an error of law or abused its discretion.
    
    Id.
     Where the competent record evidence supports the court’s findings, we
    ____________________________________________
    Our Supreme Court has recently held that an appellate court may take
    appropriate action to allow for corrective action where a timely-filed notice of
    appeal contains an error. See Commonwealth v. Young, ___ A.3d ___,
    
    2021 WL 6062566
     (Pa. filed Dec. 22, 2021) (applying Pa.R.A.P. 902 to allow
    correction of error to notices of appeal). In light of Mother’s response to the
    rules to show cause, and the fact that she has already appealed the
    dependency determinations, we need not remand for the filing of amended
    notices of appeal or other corrective action. We, thus, address the merits of
    Mother’s appeals.
    7 In the argument portion of her brief, Mother also asserts a challenge to the
    termination of her parental rights pursuant to 23 Pa.C.S. § 2511(b). Mother’s
    Br. at 22. However, Mother failed to include that challenge in her statement
    of questions involved or her Concise Statement of Errors Complained of on
    Appeal. Thus, Mother waived any claim regarding Section 2511(b). See In
    re M.Z.T.M.W., 
    163 A.3d 462
    , 466 (Pa. Super. 2017) (explaining that this
    Court will not review an appellant’s claim unless it is included in the statement
    of questions involved and Concise Statement).
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    J-S38018-21
    must affirm the termination Decree even if the record could support a different
    result. In re Adoption of Atencio, 
    650 A.2d 1064
    , 1066 (Pa. 1994).
    Critically, the Orphans’ 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., 
    855 A.2d 68
    , 73–74 (Pa.
    Super. 2004) (citations omitted). We defer to the Orphans’ Court because it
    often has “first-hand observations of the parties spanning multiple hearings.”
    In re T.S.M., supra at 267 (citations and quotation marks omitted). It is
    important to remain mindful that courts “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. Indeed, we work under statutory and case
    law that contemplates only a short period of time . . . in which to complete
    the process of either reunification or adoption for a child who has been placed
    in foster care.” In re Adoption of R.J.S., 
    901 A.2d 502
    , 513 (Pa. Super.
    2006) (emphasis in original; citations omitted).
    The Adoption Act requires that the Orphans’ Court conduct a bifurcated
    analysis when considering a Petition to terminate parental rights involuntarily.
    See 23 Pa.C.S. § 2511(a) and (b). The court first focuses on the conduct of
    the parent, and if the party seeking termination presents clear and convincing
    evidence that the parent’s conduct meets one of the grounds for termination
    set forth in Section 2511(a), the court must then analyze whether termination
    of parental rights will serve the needs and welfare of the child pursuant to
    Section 2511(b). The court must examine the existence of the child’s bond
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    with his or her parent, if any, and the potential effect on the child of severing
    that bond. In re L.M., 
    923 A.2d 505
    , 511 (Pa. Super. 2007). As we have
    explained, “a parent’s basic constitutional right to the custody and rearing of
    his or her child is converted, upon the failure to fulfill his or her parental duties,
    to the child’s right to have proper parenting and fulfillment of his or her
    potential in a permanent, healthy, safe environment.” In re B.,N.M., 
    856 A.2d 847
    , 856 (Pa. Super. 2004), appeal denied, 
    872 A.2d 1200
     (Pa. 2005)
    (citation omitted).
    While the Orphans’ Court here found that CYS met its burden of proof
    pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b), we need only agree
    with the court’s decision as to any one subsection of Section 2511(a), as well
    as Section 2511(b), to affirm the termination of parental rights. In re B.L.W.,
    
    843 A.2d 380
    , 384 (Pa. Super. 2004) (en banc), appeal denied, 
    863 A.2d 1141
     (Pa. 2004).
    Termination Pursuant to Section 2511(a)(1)
    We first conclude the Orphans’ Court properly exercised its discretion by
    terminating Mother’s parental rights pursuant to Section 2511(a)(1). Section
    2511(a)(1) provides for termination where the petitioner establishes by clear
    and convincing evidence that “[t]he 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.” 23 Pa.C.S. § 2511(a)(1);
    In re Adoption of C.M., 
    255 A.3d 343
    , 358 (Pa. 2021) (citations omitted).
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    While the Adoption Act does not define the term “parental duties,” our
    courts have explained that parents must exert themselves to maintain a place
    of importance in their children’s lives. Id. at 364 (quoting In re Adoption of
    R.W.G., 
    431 A.2d 274
    , 276 (Pa. 1981)). “[C]ommunication and association
    are essential to the performance of parental duty[,]” and a parent may not
    preserve his or her rights by waiting for a more convenient time to perform
    parental responsibilities while others attend to a child’s physical and emotional
    needs. 
    Id.
     (citations and quotation marks omitted). Moreover, a parent must
    “‘exercise reasonable firmness’” in resisting any obstacles that may prevent
    him or her from maintaining the parent-child relationship. 
    Id.
     (quoting In re
    Adoption of S.P., 
    47 A.3d 817
    , 828 (Pa. 2012)). If the evidence establishes
    that a parent has failed to perform parental duties in the six months preceding
    the filing of the Petition, the Orphans’ Court “must examine the individual
    circumstances and any explanation offered by the parent to determine if that
    evidence, in light of the totality of circumstances, clearly warrants permitting
    the involuntary termination [of parental rights].” 
    Id.
     (quoting In re Orwick’s
    Adoption, 
    347 A.2d 677
    , 680 (Pa. 1975)).
    Here, Mother acknowledges she failed to maintain contact with Children.
    Mother’s Brief at 15-16. She contends her lack of contact resulted from her
    mental health issues and “fear of doing something stupid,” and she complains
    that CYS failed to accommodate these circumstances. Id. at 15-17. Mother
    asserts she had a “light bulb [sic] moment of fear” when the Juvenile Court
    changed Children’s goals to adoption in January 2021 and thereafter increased
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    J-S38018-21
    her contact with Children and their foster mother. Id. Mother also attempts
    to defend her lack of contact with Children by arguing she was performing her
    parental duties by not having contact with them. Id. at 16-17. She proposes
    that she “engaged in her parental duty” by relying on Children’s foster mother
    to care for them and by doing so protected them “from her own shortcomings.”
    Id.
    The Orphans’ Court rejected Mother’s explanation, finding that she failed
    to attend visits with Children and “completely put the [c]hildren out of her life”
    from at least June 2020 to January 2021. Orphans’ Court Opinion, 9/1/21, at
    25-26. Although the court recognized Mother later increased her contact with
    Children, it dismissed these belated efforts as merely “an effort to change the
    impact of the pending litigation.” Id. at 26. The court observed that Mother
    showed no interest in addressing Children’s needs during the limited contact
    she did have with them, as she did not even bother to feed them or change
    P.S.-Q.S.-L.’s diaper. Id.
    The Orphans’ Court further found Mother refused to accept responsibility
    for Children’s placement in foster care and failed to cooperate with CYS. Id.
    Specifically, the court observed that Mother had not completed recommended
    substance abuse treatment or attended mental health treatment consistently.
    Id. The court concluded Mother continued to place her needs above those of
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    Children and had not made the strides necessary to reunify with them despite
    significant time and available services. Id. at 26-27.8
    Our review of the record supports the Orphans’ Court’s conclusion that
    Mother refused or failed to perform parental duties in the six months preceding
    the filing of the termination Petitions. Strikingly, the testimony reveals Mother
    did not take advantage of supervised visitation. Mother visited with Children
    informally through Children’s foster mother in June 2020 and then did not visit
    them again until another informal visit in December 2020.9 N.T., 3/23/21, at
    44-45, 48-49, 113. Mother did not visit Children after that until she arranged
    additional informal visits in January 2021, near the time CYS filed its Petitions
    to terminate her parental rights on January 19, 2021. Id. at 43, 48-49, 56,
    ____________________________________________
    8 The Orphans’ court also concluded that severing Mother’s parental rights to
    Children would not adversely affect the Children’s wellbeing. Orphans’ Court
    Opinion, 9/1/21, at 33. The court observed that M.D.V.M. had only a “minimal
    bond” with Mother; and P.S.-Q.S.-L has had almost no contact with Mother
    throughout his life as he has lived in foster care since shortly after birth. Id.
    at 3-4, 10-13, 25-29. The court found both Children thrived in their foster
    home, despite Mother’s lengthy absence from their lives, and that they shared
    a strong bond with their pre-adoptive foster mother, who provided them a
    nurturing, safe, and supportive environment. Id. at 33-34. Children did not
    look to Mother as a source of support and, as such, the court concluded
    terminating Mother’s parental rights would have no adverse effect on them
    and, in fact, will serve the Children’s best interests by providing them with a
    nurturing, safe, and supportive home. Id. at 34.
    9 CYS offered Mother video visits at the start of the dependency proceeding
    due to the COVID-19 pandemic. N.T., 3/23/21, at 45, 59-61. It is not entirely
    clear from the record whether Mother attended any of these video visits.
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    J-S38018-21
    122-23. Mother also had phone contact with Children, but this occurred only
    once per month, approximately, until January 2021. Id. at 114; Exhibit D.
    Further, it was within the Orphans’ Court’s discretion to reject Mother’s
    explanation for her refusal or failure. Mother’s claim, that her mental health
    issues excused her lack of contact with Children, and that she performed her
    parental duties by leaving Children in the care of their foster mother, is plainly
    contrary to our law, which requires that a parent take affirmative steps to
    maintain a relationship with his or her child. See In re Adoption of C.M.,
    supra at 364. Accordingly, Mother is not entitled to relief.
    Decrees affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/25/2022
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Document Info

Docket Number: 940 WDA 2021

Judges: Dubow, J.

Filed Date: 1/25/2022

Precedential Status: Precedential

Modified Date: 1/25/2022