In Re: Adoption of N.R.B. Appeal of: R.B.S. mother ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF N.R.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.B.S., NATURAL MOTHER
No. 510 WDA 2017
Appeal from the Order Entered February 24, 2017
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No(s): 100 of 2015
IN RE: ADOPTION OF I.E.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.B.S., NATURAL MOTHER
No. 511 WDA 2017
Appeal from the Order Entered February 24, 2017
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No(s): 99 of 2015
BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 31, 2017
R.B.S. (“Mother”) appeals from the orders granting the petitions of
Children and Youth Services (“CYS”) for the involuntary termination of her
parental rights to her daughter, I.E.B., born March 2008, and her son,
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*
Former Justice specially assigned to the Superior Court.
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N.R.B., born October 2010 (collectively, “the Children”). Upon careful
review, we affirm.
CYS’s involvement in this case dates back to the birth of I.E.B. in
2008, when CYS received a report that Mother had used drugs during her
pregnancy. In the ensuing years, Mother has engaged in a cycle of drug
abuse, incarceration, and rehabilitation programs. See Trial Court Opinion,
4/21/17, at 3 (“[t]he fundamental reason for the filing of the Petition and for
the dependency proceeding is [Mother’s] inability to remain free of illegal
drugs and incarceration or institutionalization”). Mother’s lifestyle has
caused both Children to be placed in the care of family members, although
the Children were not adjudicated dependent until October 2, 2013. The
Children were placed in their current foster home on August 19, 2014. N.T.,
11/18/16, at 17.
CYS petitioned for the termination of Mother’s parental rights on
October 23, 2015.1 Termination hearings were conducted on November 17
and 18, 2016, and February 6, 2017. The trial court entered the orders
terminating Mother’s parental rights to the Children on February 16, 2017.
Mother timely filed two notices of appeal (one for each Child). On April 24,
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1
CYS also petitioned for the termination of the parental rights of R.J.B.
(“Father”), and he was a party to the proceedings before the trial court. The
trial court terminated both Mother and Father’s parental rights on
February 16, 2017. Father is not a party to this appeal.
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2017 this Court consolidated the two appeals sua sponte. Mother presents
two issues for our review:
1. When [CYS] is specifically tasked by the legislature with
providing contact between the parent and the subject
children, but makes no efforts to allow any type of contact,
which ultimately results in the once strong bonds to be
severely disabled and for the children to suffer mental
anguish, is it proper for the Court to then use the lack of a
bond and the resultant issues and altered perspective of the
children as a factor in the termination proceeding?
2. When [CYS] is required to offer services, that when fully
complied with and applied should lead to the primary goal of
reunification, but selectively provide them and/or cause[s]
the children to resent visits, is it proper for the Court to then
use the resultant issues as a factor in the termination
proceeding?
Mother’s Brief at 4.
We recognize:
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).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. § 2511, 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 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). The
burden is on the petitioner seeking termination to prove by clear and
convincing evidence that the asserted statutory grounds for seeking the
termination of parental rights are met. In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009).
The trial court determined there was clear and convincing evidence to
terminate Mother’s parental rights to the Children pursuant to 23 Pa.C.S. §
2511(a)(2)(5)(8), and (b), which state:
(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: ...
(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.
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...
(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.
...
(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.
....
(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.
Mother does not challenge the trial court’s determination that her
conduct satisfied the statutory grounds for termination set forth in Section
2511(a). Rather, in both of her issues she focuses on Section 2511(b).2
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2
Mother fails to divide her argument into two sections, in contravention of
Pa.R.A.P. 2119(a) (“the argument shall be divided into as many parts as
(Footnote Continued Next Page)
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The essence of Mother’s argument is that the trial court erred in determining
that termination would be best for the Children’s needs and welfare because
CYS “made no efforts toward setting up any type of contact despite Mother’s
many requests” and “the lack of contact caused the once strong bond to
dwindle.” Mother’s Brief at 7.3
Needs and Welfare under Section 2511(b)
Mother faults CYS for her lack of contact with the Children, and claims
that her parental rights were improperly terminated because “it was not
Mother who created the on-again, off-again relationship, it was caused by
the agency.” Mother’s Brief at 13. Mother concludes, “this case is a
travesty” because CYS did “not make any type of visits or contact available
for many months on end, [and] did so at the expense of the children whose
trauma would have been lessened by constant contact.” Id. Mother’s
argument is unavailing.
The record is clear that Mother, by her actions for all of the Children’s
lives, is responsible for her lack of contact with the Children. With regard to
I.E.B., the trial court determined:
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(Footnote Continued)
there are questions to be argued; and shall have at the head of each part –
in distinctive type or in type distinctively displayed – the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent”).
3
Again, Mother disregards Pa.R.A.P. 2119 insofar as she cites no case law to
support her argument.
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The facts clearly show that [I.E.B.] bears the scars of the
dislocation and separation caused by the on-again, off-again
relationship the Child has had with Mother[]. Further, the Child
has suffered from the worry and anguish caused by nothing else
but her parents’ illicit behavior. The bond between Mother and
the Child has been disfigured and shattered. The Child is now in
a place where she can feel secure and enjoy some measure of
stability. The Child’s behavior has improved and, not
surprisingly, the Child wants to remain with her foster parents.
Even at the Child’s tender age, the Child intuitively recognizes
that Mother [] will never be able to provide the home she wants
and needs. Mother [] ha[s] already caused too much pain in this
Child’s life. Accordingly, pursuant to § 2511(b), the Court finds
that termination of Mother’s rights is in the best interests of the
Child.
Trial Court Opinion, 4/21/17, at 9 (citations to the record omitted).
Addressing N.R.B., the trial court repeated its determination:
The facts clearly show that [N.R.B.] bears the scars of the
dislocation and separation caused by the on-again, off-again
relationship the Child has had with Mother[]. Further, the Child
has suffered from the worry and anguish caused by nothing else
but her parents’ illicit behavior. The bond between Mother and
the Child has been disfigured and shattered. The Child is now in
a place where she can feel secure and enjoy some measure of
stability. The Child’s behavior has improved and, not
surprisingly, the Child wants to remain with his foster parents.
Mother [] ha[s] already caused too much pain in this Child’s life.
Accordingly, pursuant to § 2511(b), the Court finds that
termination of Mother’s rights is in the best interests of the
Child.
Trial Court Opinion, 4/21/17, at 9 (citations to the record omitted).
The record supports the trial court’s conclusions. Mother concedes her
addiction and the fact that she “was incarcerated for large portions of time
while the [C]hildren were in agency care.” Mother’s Brief at 8, 12. Mother
assails CYS for not facilitating more frequent and regular contact between
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Mother and the Children while she was incarcerated, but disregards the
failed protective services CYS provided to the parties prior to CYS’
assumption of custody of the Children in 2013, and before CYS petitioned for
the termination of Mother’s parental rights on October 23, 2015. As stated
in the petition, “[t]he family has been receiving services from [CYS]
continuously since [November 2011].” Petition for Involuntary Termination
of Parental Rights, 10/23/15, at 10. For approximately four years, CYS
provided Mother with parenting instruction and supervision, mental health
treatment, and drug and alcohol treatment. Id. Nevertheless, at a
permanency review hearing on March 10, 2014, the court determined
Mother “had only minimal compliance . . . as she was unsuccessfully
discharged from both mental health treatment and drug and alcohol
treatment. Mother additionally tested positive for illegal drugs on multiple
occasions and was homeless. All previously ordered services were to remain
and Mother was additionally ordered to obtain stable housing and attend an
orientation for Family Drug Court.” Id.
In addition, while Mother concedes her drug addiction, she disregards
the impact her history of incarceration and drug rehabilitation, including her
placements throughout Pennsylvania, has had on her capacity to parent and
maintain contact with the Children. CYS explained:
Mother’s incarceration history is extensive, however,
relative to the period during which the Children were in Agency
custody, Mother was first incarcerated in 2014. She remained
incarcerated until she was paroled from State Correctional
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Institution (hereinafter ‘SCI’) Muncy in April 2015 to community
corrections at Renewal, Inc. She remained at Renewal, Inc. until
July 2015 when she absconded after a positive drug test.
Mother was arrested for this violation in August 2015. She was
released to Gateway Rehab where she remained until September
22, 2015. Mother was then to report to a halfway house, which
she did not, resulting in another parole violation. Mother was
ultimately re-incarcerated on December 8, 2015 at
Westmoreland County Prison where she remained until being
transferred to SCI Cambridge Springs on April 17, 2016. She
was released from SCI Cambridge Springs on June 8, 2016 to
Promise Place halfway house where she remained until August 2,
2016.
CYS Brief at 6-7 (footnotes omitted). We note that the Children are from
Westmoreland County, where this case originated. SCI Muncy is in
Lycoming County; Renewal, Inc. is in Allegheny County; Gateway Rehab is
in Beaver County; SCI Cambridge Springs is in Crawford County; and
Promise Place is in Dauphin County. In light of Mother’s history, CYS cannot
be blamed for the “lack of contact [which] caused the once strong bond to
dwindle” and “causing the on-again, off-again relationship” with the
Children. Mother’s Brief at 7, 13.
We have stated:
Before filing a petition for termination of parental rights, the
Commonwealth is required to make reasonable efforts to
promote reunification of parent and child. In re Adoption of
M.E.P., 825 A.2d 1266, 1276 (Pa.Super.2003). However, the
Commonwealth does not have an obligation to make such efforts
indefinitely. The Commonwealth has an interest not only in
family reunification but also in each child’s right to a stable, safe,
and healthy environment, and the two interests must both be
considered. Id. “A parent's basic constitutional right to the
custody and rearing of his or her child is converted, upon the
parent’s failure to fulfill his or her parental duties, to the child's
right to have proper parenting and fulfillment of his or her
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potential in a permanent, healthy, safe environment.” In re
B.L.W., 843 A.2d 380, 388 (Pa.Super.2004) (en banc), appeal
denied, 581 Pa. 668, 863 A.2d 1141 (2004) (quoting In re
B.L.L., 787 A.2d 1007, 1013–14 (Pa.Super.2001)).
In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006). “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.” In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.
Super. 2015) (citations omitted); see also In re T.D., 949 A.2d 910, 920–
23 (Pa. Super. 2008), appeal denied, 970 A.2d 1148 (Pa. 2009) (affirming
the termination of parental rights where “obvious emotional ties exist
between [child] and Parents, but Parents are either unwilling or unable to
satisfy the irreducible minimum requirements of parenthood”).
CYS presented ample evidence in this case that termination of
Mother’s parental rights would serve the Children’s needs and welfare. For
example, Psychologist Carol Patterson testified as an expert “in the field of
bonding and attachment for children and as a psychologist.” N.T., 11/17/16,
at 16. Ms. Patterson prepared an evaluation based on interviews with
Mother, Father, and the Children’s foster parents. She noted that CYS had
been involved with the family since the birth of I.E.B. in 2008, due to both
parents’ history of drug abuse, incarceration and mental health issues. In
her August 18, 2016 observation of the Children with Mother, she observed
I.E.B. “did not refer to her mother in any way” and “did not initiate any
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affectionate behavior toward her mother.” Id. at 30-31. Ms. Patterson
stated that N.R.B. appeared anxious and “did not initiate or participate in
any active conversation with his mother, and actually displayed regressive
behavior.” Id. at 33. Ms. Patterson opined, “I think the Children were
never sure if and when the parents were ever going to show up. So a visit
would be scheduled, one of them might be in rehab or incarcerated, and the
visit didn’t happen. So eventually I’m sure these Children finally said, we
don’t care anymore.” Id. at 38-39. Ms. Patterson concluded that both
Children “displayed no bond” with Mother. Id. at 47.
With regard to the Children’s current placement, Ms. Patterson
testified:
Well, the Children had several placements prior to their
final placement with this foster home in August 2014. They
have been placed with a maternal uncle, placed with maternal
grandfather. They had been placed in two different foster
homes. The Children were obviously not in stable positions
when they were with their parents in any way. The parents were
in and out of incarcerations, in and out of rehab facilities. There
was no stability for these Children until August 2014. That lack
of stability obviously causes emotional and behavioral problems,
which the Children displayed with these foster parents. . . . [But
t]hey obtained stability. They were in a home. They started
school. They were being cared for, nurtured. They had rules
and boundaries; all those things that help them grow . . . So
they found that in August 2014.
N.T., 11/17/16, at 37-38. The Children refer to their foster parents as
mommy and daddy and evidence a bond with them. Id. at 41; 129. Ms.
Patterson opined that both Children “displayed a strong bond and
attachment” with their foster family. Id. at 48. Ms. Patterson’s “ultimate
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conclusion” was that reunification with Mother was not in the Children’s best
interests, and that termination of Mother’s parental rights and adoption in
their current foster home would be best for the Children’s needs and welfare.
Id. at 48-49.
Licensed therapist Sacha Martin testified to working primarily with
children who experienced trauma, including the Children in this case. Ms.
Martin worked with the Children for a two and a half year period, up until the
termination hearings. Ms. Martin observed great improvement in both
Children’s stability and mental health, which she attributed to their current
placement. N.T., 11/17/16, at 127-128. She also related I.E.B.’s desire –
for the past two years – to remain in her foster placement. Id. at 123, 125.
Similarly, N.R.B. has expressed his desire to live in the foster home “going
forward.” Id. at 127. Ms. Martin opined that if the Children were removed
from their foster placement, “you would see a decompensation in their
behaviors . . . it would be very traumatic to remove them at this point.” Id.
at 128. The Children consider their foster parents to be their parents. Id.
at 157.
Supervised Visitation Specialist Tracy Pletcher began working with the
family in August of 2013. In that time, Ms. Pletcher had not observed “any
improvement” in the contact between Mother and the children. Id. at 175.
As recently as the week before the first termination hearing in November of
2016, the Children indicated their worry about being unsupervised with
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Mother, and that Mother “might take them somewhere.” Id. at 170. The
Children have expressed to Ms. Pletcher their desire to stay with their foster
family and be adopted. Id. Ms. Pletcher did not perceive “any harm” from
the termination of Mother’s parental rights. Id. at 181, 185. Conversely,
Ms. Pletcher expressed concern that without termination, the Children would
be “in limbo, and we’re still waiting to see if [Mother] can [be] consistent.
[The Children] are doing well. We have not had that [in the past].” Id. at
184.
Based on the foregoing, we find Mother’s issues pertaining to CYS and
the Children’s needs and welfare to be without merit.
Separate Legal Counsel for the Children
Mother’s brief contains a single sentence in her Summary of the
Argument that states, “the children were not provided an attorney to
represent their legal interests[.]” Mother’s Brief at 7. She apparently claims
that the Children were entitled to separate legal counsel under our Supreme
Court’s recent decision in In re Adoption of L.B.M., 161 A.3d 172 (Pa.
2017). Both CYS and the Children’s guardian ad litem have discussed the
case in their briefs and argue that that L.B.M. is inapplicable to this case.
We agree.
In L.B.M., the Supreme Court addressed Section 2313(a) of the
Adoption Act, 23 Pa.C.S. § 2313(a), which requires the trial court to appoint
counsel for children in termination of parental rights cases. In part II-B of
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the lead opinion, Justice Wecht concluded that a trial court is required to
appoint counsel to represent a child’s legal interests even when the child’s
guardian ad litem, who is appointed to represent the child’s best interests, is
an attorney. However, four members of the Court disagreed with such a
strict application of Section 2313(a). Rather, they opined, in separate
concurring and dissenting opinions, that separate representation would be
required only if the child’s best interests and legal interests conflicted. In In
re D.L.B., ___ A.3d ___, 2017 WL 2590893 at *5-6 (Pa. Super. 2017), this
Court concluded that the combined opinions of those four justices stated the
governing rule of the L.B.M. decision and that, as a result, appointment of
separate counsel would be required only if such a conflict is shown. We
agree with and are bound by the interpretation of L.B.M. in In re D.L.B.
Here, there is no evidence of any conflict between the interests
advocated by Attorney Petonic as guardian ad litem and the interests of the
Children, and our review of the record does not reveal any conflict between
the Children’s legal interests and best interests. Accordingly, we agree with
CYS and the guardian ad litem that the Children were properly represented
during the termination proceedings and no relief on this issue is due.
Conclusion
We have explained that a parent’s own feelings of love and affection
for a child, alone, do not prevent termination of parental rights. In re Z.P.,
994 A.2d at 1121. Further, this Court has stated: “[A] parent’s basic
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constitutional right to the custody and rearing of . . . her child is converted,
upon the failure to fulfill . . . her parental duties, to the child’s right to have
proper parenting and fulfillment of [the child’s] potential in a permanent,
healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.
2004) (internal citations omitted). It is well-settled that “we will not toll the
well-being and permanency of [a child] indefinitely.” In re Adoption of
C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.
Super. 2008) (noting that a child’s life “simply cannot be put on hold in the
hope that [a parent] will summon the ability to handle the responsibilities of
parenting.”)).
For the reasons discussed above, we discern no abuse of discretion by
the trial court. Therefore, we affirm the orders terminating Mother’s
parental rights.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2017
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