In Re: Adoption of C.D.R., Appeal of: R.R. , 111 A.3d 1212 ( 2015 )

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2015 PA Super 54IN RE: ADOPTION OF: C.D.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.R., NATURAL MOTHER No. 1692 WDA 2014
Appeal from the Order entered September 19, 2014,
in the Court of Common Pleas of Cambria County, Orphans’
Division, at No: 2014-0111 IVT
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
OPINION BY STABILE, J.: FILED MARCH 17, 2015
R.R. (Mother) appeals from the order entered September 19, 2014, in
the Court of Common Pleas of Cambria County, involuntarily terminating her
parental rights to her minor son, C.D.R. (Child), born in July of 2009. We
affirm.1
On April 18, 2012, Mother was incarcerated as a result of a probation
violation. Cambria County Children and Youth Service (CYS) filed a
dependency petition on June 1, 2012, and Child was adjudicated dependent
by order dated June 6, 2012. Physical custody of Child was granted to
Child’s maternal aunt during Mother’s incarceration. Mother was released on
July 26, 2012, and Child was returned to her care. However, Mother was
1
The identity of Child’s father (Father) is unknown. It does not appear from
the record that a petition to terminate Father’s parental rights was filed or
that Father’s rights were terminated by a previous court order. We note
that, generally, a minor may not be adopted unless both of his or her natural
parents consent, thereby relinquishing their parental rights. 23 Pa.C.S.A.
§ 2711(a)(3). A natural parent’s consent is unnecessary where that
parent’s rights previously have been terminated, or where the court, after
notice and a hearing, determines that grounds exist for involuntary
termination. 23 Pa.C.S.A. § 2714.
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again incarcerated for a probation violation on or about October 10, 2012,
and Child was placed in foster care. Child has not resided with Mother since
that time.
Mother was released on October 18, 2012, but was re-incarcerated
from November 28, 2012, until March 30, 2013, because of a drug
paraphernalia charge. Mother was once again incarcerated for failing to
appear at a probation hearing on October 7, 2013, and remained
incarcerated until December 12, 2013. Mother gave birth to a daughter,
Child’s younger sister, shortly after her release. Finally, Mother was
incarcerated for two days starting on December 21, 2013, as a result of a
retail theft charge. By order dated January 10, 2014, Child’s permanency
goal was changed from reunification to adoption, and CYS ended
reunification services.2
On February 3, 2014, CYS filed a petition to involuntarily terminate
Mother’s parental rights to Child. A hearing was held on August 13, 2014,
during which the orphans’ court heard the testimony of CYS caseworker,
Barbara Brzana; CYS social worker, Gina Saly; and Mother. On September
19, 2014, the court entered its order terminating Mother’s parental rights.
Mother timely filed a notice of appeal on October 8, 2014, along with a
2
The record is inconsistent as to the exact dates of Mother’s many
incarcerations. For the purposes of this summary, we rely on the dates
listed in Mother’s family service plan documentation, which was entered into
evidence at the termination hearing as Petitioner’s Exhibit 3.
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concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
Mother now raises the following issue for our review: “Whether the
[orphans’ c]ourt either abused its discretion or committed an error of law
when it granted the Petition for Involuntary Termination of Parental Rights,
thereby terminating the parental rights of [Mother] relative to [Child?]”
Mother’s Brief at 2.
We consider Mother’s claim mindful of our well-settled standard of
review.
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, 23 Pa.C.S.A. §§ 2101-2938, 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
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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).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to Section 2511(a)(1), (2), (5), (8) and (b). We need only agree
with the orphans’ court as to any one subsection of Section 2511(a), as well
as Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Here, we analyze the court’s decision to terminate under Section 2511(a)(2)
and (b), which provide as follows.
(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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(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)(2), (b).
We first address whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted).
Instantly, in support of its order terminating Mother’s parental rights,
the orphans’ court adopted a number of factual findings from the juvenile
court’s January 10, 2014 permanency review order, which changed Child’s
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permanency goal to adoption. Orphans’ Court Opinion, 9/18/2014, at 4.
Most notably, the court adopted the findings that Mother has failed to
establish and maintain a lifestyle that would permit her to provide long-term
care for Child, and that Mother cannot remedy the causes of Child’s
placement within a reasonable time. Id. The court also emphasized that
Mother failed to comply with CYS services after she was released from
incarceration in March of 2013, and began missing appointments and visits
with Child. Id. at 5. The court concluded that, while Mother loves Child and
has made some progress toward regaining custody, she has not
demonstrated consistency, and “cannot adequately support herself, let alone
any child.” Id.
Mother argues that she has been committed to regaining custody of
Child, that she has utilized all available resources to achieve that goal, and
that she has made progress. Mother’s Brief at 4-6. Mother insists that she
has remedied her drug addiction and criminal issues, and that she has
adequate housing and a support system to assist her. Id. at 5, 7, 9-11.
Mother also argues that the orphans’ court erred by adopting the findings of
the juvenile court, rather than making its own findings. Id. at 8-9.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by involuntarily terminating
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Mother’s parental rights to Child.3 CYS caseworker, Barbara Brzana,
testified that Mother has a criminal history consisting mostly of retail theft
charges. N.T., 8/13/14, at 10. Mother was on probation at the time of the
termination hearing, and Ms. Brzana explained that all of Mother’s criminal
charges had been resolved, “except for her most recent ones from May 7th,”
which were additional retail theft charges. Id. at 10, 43. Concerning
Mother’s efforts at reunification with Child, Ms. Brzana testified that Mother,
at times, appeared to be making progress. Id. at 23, 36. At one point,
after the petition to terminate Mother’s parental rights had been filed, CYS
asked that no termination hearing be scheduled in light of Mother’s
motivation and cooperation. Id. at 36. However, Ms. Brzana testified that
Mother’s progress was inconsistent, and that Mother did not complete any of
the services offered by CYS, including drug and alcohol treatment, and
psychiatric services. Id. at 15-17; Petitioner’s Exhibit 2, at 3. She offered
the following explanation:
. . . . Services have been provided and [Mother] has not been
consistently stable in one regard. Services began in March of
2012. In less than a month she was incarcerated and her
children were placed with her sister. Upon her release, within
four months her children were returned. In less than two
months she was again incarcerated and her children were again
placed. Once she was released in March of 2013, she initially
showed some cooperation with the agency and services then
3
We need not consider whether the orphans’ court erred by adopting factual
findings from the juvenile court’s permanency review order. Even if the
orphans’ court did err, there was ample evidence presented during the
termination hearing to support the court’s decision, and the court’s error
would not require reversal of the order terminating Mother’s parental rights.
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chose not to comply with drug screens. We would request her to
come in. She would show up two days later so we couldn’t get a
true random drug screen on her.
Her behaviors were inconsistent with sobriety, and [] then
after the August 21st hearing, 2013, she totally stopped having
communication with the agency and visits with her children. She
did not visit with them and was incarcerated due to again
refusing the random drug screen and also a scheduled drug
screen that our social worker was going to pick her up for on
October 3rd. So she was incarcerated on a bench warrant on
October 10, 2013, but still did not contact the agency to inquire
how her children were doing at that time. It wasn’t until myself
and the social worker went to the prison to initiate contact
between us on October 14th.
She was released on December 12th, at which time she
gave birth to [Child’s younger sister], and, again, she did inquire
and did show promise that she wanted to make change[s], but
at that point because of the length of time that [Child] ha[d]
been in care, the goal change [hearing] occurred on December
18th. Two days after that she again was incarcerated for more
retail theft charges.
In January when [Child’s younger sister] was placed with
the agency, she did say she wanted to work with the agency.
She did show some consistency for the first month, though she
did have a positive drug screen for marijuana at that time. She
did in January maintain her appointments with the agency social
worker and her visitation with the children. In February she
began missing sessions with service providers. She had
additional criminal charges in the month of February.
In March she, again, continued to miss sessions with the
service providers to the point with Alliance Medical Center that
they had to put her on a behavioral plan due to missing
appointments and because of her behavior with staff at the
facility. She tested positive for Benzos in March. In April she
continued to have inconsistency with [the Alternative Community
Resource Program] and her agency social worker. She was
under eviction from her apartment. She continued to test
positive for THC. She tried to initiate services within
Independent Family Services for home management to assist
with the eviction notice and getting her some financial stability.
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In May of 2014, she continued to miss sessions, admitted
to ongoing use of THC, failed with Independent Family Services,
and at that point her mom did step in so the eviction notice was
lifted. . . .
N.T., 8/13/14, at 28-30.
Ms. Brzana further testified that, in May of 2014, Mother revoked the
releases that allowed CYS to obtain information from Mother’s service
providers. Id. at 21. On May 28, 2014, Mother informed Ms. Brzana that
she no longer wanted to have any contact with CYS. Id. Thus, Ms. Brzana
noted that she had no information regarding Mother’s treatment after May.
Id. at 30.
Concerning visitation, Ms. Brzana testified that Mother’s visits with
Child were reduced to one per month after Child’s permanency goal was
changed to adoption. Id. at 23-24. However, Mother was given extra visits
with Child because she was demonstrating progress toward reunification
with Child’s younger sister. Id. at 23. Mother attended all of her visits from
January of 2014 until May 28, 2014. Id. at 24. Mother failed to attend all
three visits thereafter. Id. Mother claimed to Ms. Brzana that one of the
visits was missed because Mother had to work. Id. at 25. Mother reported
that she missed another visit because she thought it was on a different day.
Id. No reason was offered for missing the third visit. Id. Ms. Brzana stated
that Mother did not ask to reschedule any of the visits. Id. at 26.
CYS social worker Gina Saly testified that she began working with
Mother in June of 2013. Id. at 48. Ms. Saly was initially assigned to assist
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Mother in regaining custody of Child and Child’s older brother. Id. In
December of 2013, Ms. Saly began assisting Mother with respect to Child’s
younger sister. Id. Between June of 2013, and August of 2013, Ms. Saly
had four supervised visits with Mother, and three individual social worker
sessions. Id. at 49. In September of 2013, Ms. Saly scheduled several
sessions with Mother, and Mother failed to attend all of them. Id. at 50.
Mother was incarcerated from October 2013 until December 2013, and Ms.
Saly met with her once in prison. Id. After Mother’s release, from January
of 2014 to about March of 2014, Mother was “very committed” to meeting
with Ms. Saly. Id. at 52. However, during April and May of 2014, Mother’s
commitment “started to lack,” and Mother began to miss sessions. Id. at
51-53. Ms. Saly stopped meeting with Mother after May, because the
permanency goal of Child’s younger sister had also been changed to
adoption. Id. at 52. Ms. Saly admitted that Mother displayed “a great
understanding of parenting skills.” Id. at 55. However, Mother never
completed Ms. Saly’s parenting curriculum. Id.
Mother testified that she is unemployed, and that she is supported by
her boyfriend, with whom she now resides, and family members. Id. at 59,
75-76. Mother stated that she travels to a drug and alcohol clinic each
weekday, where she attends counseling sessions and receives methadone
treatments. Id. at 65. Mother noted that she also attends the Alternative
Community Resource Program, where she receives therapy and is prescribed
medication. Id. at 72. Mother conceded that she has a history of retail
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theft, but stated that she took “an online class . . . just last month” in order
to rehabilitate herself, and that she has not stolen anything since. Id. at 79.
Mother indicated that she is working toward resolving her criminal issues,
and that she is currently attending the Day Reporting Center. Id. at 67-69.
Mother stated that she began attending the Center two weeks prior to the
termination hearing, as a result of one of her criminal charges, and that she
is taking classes there in order to obtain her GED. Id. at 68-69. Mother
claimed that she was subject to drug screens at the Center, and that she has
not tested positive for drugs since the previous April, when she tested
positive for marijuana. Id.
Mother further testified that she had not seen Child since May of 2014.
Id. at 60. She admitted that visits with Child had been scheduled since
May, but that she did not attend the visits because she was upset that her
parental rights were being terminated, and she did not know how to say
goodbye. Id. Mother explained that her compliance with CYS began to slip
in March and April of 2014 because she became overwhelmed with
everything that she was required to do. Id. at 80, 91. Mother blamed her
feeling of being overwhelmed on her anxious and depressed mental state.
Id. Mother claimed that she no longer felt overwhelmed. Id. at 80. Mother
also stated she contacted CYS every time she missed an appointment and
attempted to reschedule. Id. at 80-81, 91. Mother testified that she
revoked her releases because she felt like CYS was “sabotaging” her efforts
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at reunification by only testifying as to the bad things she was doing and not
the good things. Id. at 92.
Our review of the record supports the orphans’ court’s conclusion that
Mother is incapable of parenting Child, and that her parental incapacity has
left Child without essential parental care or control. Additionally, it was
reasonable for the court to determine that Mother will not, or cannot,
remedy this incapacity. While the evidence presented at Mother’s
termination hearing establishes that she did make some progress toward
reunification with Child, we agree with the orphans’ court that Mother has
failed to demonstrate consistent improvement. Moreover, at the time of the
termination hearing, it appears that Mother had abandoned any attempt at
being reunified with Child, by ending her visits, revoking her releases, and
by indicating that she no longer wanted to have any contact with CYS. No
relief is due.
Next, we consider whether termination was proper under Section
2511(b). Section 2511(b) “focuses on whether termination of parental
rights would best serve the developmental, physical, and emotional needs
and welfare of the child.” In re Adoption of J.M., 991 A.2d 321, 324 (Pa.
Super. 2010). As this Court has explained, “Section 2511(b) does not
explicitly require a bonding analysis and the term ‘bond’ is not defined in the
Adoption Act. Case law, however, provides that analysis of the emotional
bond, if any, between parent and child is a factor to be considered” as part
of our analysis. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
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“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 N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)
(citing K.K.R.-S., 958 A.2d at 533-36).
[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.
Id. (quoting In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010)); 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 T.D. and Parents, but Parents are either
unwilling or unable to satisfy the irreducible minimum requirements of
parenthood,” and where preserving the Parents’ rights would prevent T.D.
from being adopted and attaining permanency).
Here, the orphans’ court concluded that Mother and Child were
bonded. Orphans’ Court Opinion, 9/18/2014, at 5. However, the court
reasoned that termination would not be detrimental to Child, and would best
meet Child’s developmental, physical and emotional needs and welfare. Id.
at 5, 7. Mother argues that there was no competent evidence presented to
support the orphans’ court’s determination that termination would be in
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Child’s best interest, “[a]side from bald assertions from CYS.” Mother’s Brief
at 9-11. Mother contends that Child is already struggling with being
separated from her, and states that “severing the bond will certainly have a
devastating effect” on Child. Id. at 9-12. Mother notes that there was no
testimony presented that Child has been harmed by his bond with Mother, or
that Child is bonded with his foster parents or to any prospective adoptive
parents. Id. at 12-13.
Again, we conclude that the record supports the orphans’ court’s
decision to terminate Mother’s parental rights. Mother testified that she
loves Child, that her visits with Child go well, and that she and Child have a
strong bond. N.T., 8/13/14, at 61. Mother also testified that Child calls her
“mommy.” Id. Ms. Brzana agreed that Mother “definitely” loves Child, and
that Child loves Mother. Id. at 34. However, Ms. Brzana stated that this
love should not prevent Child from finding permanency with another family.
Id. Ms. Brzana emphasized that Mother had failed to attend recent visits
with Child, and that Child “has been really verbalizing that he does not feel
loved by his mom. Even though as adults we know that is not true, he has a
hard time comprehending that because she has not been there for her visits
with him.” Id. Ms. Brzana opined that Child will likely always remember
Mother and have some affection for her, but that Child would not be harmed
if Mother’s parental rights were terminated. Id. at 104. She explained that
Child had been saying that he wanted “a new mom and dad.” Id.
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Additionally, Ms. Brzana noted that Child was being provided adoption
preparation services to ease this transition. Id. at 103-04.
Thus, the evidence supports the orphans’ court’s determination that it
would be in Child’s best interest if Mother’s parental rights were terminated.
Admittedly, Child loves Mother, and Mother is correct that there was no
evidence presented during the hearing that Child is bonded with his current
foster family. Further, there was no testimony as to whether or not Child’s
current foster placement is pre-adoptive. However, these concerns are
outweighed in the instant case by Mother’s repeated failure to remedy her
parental incapacity, and by Child’s need for permanence and stability. See
T.D., 949 A.2d at 920-23; J.M., 991 A.2d at 325 (quoting In re Adoption
of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006)) (“‘The court 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.’”). Clearly, it would not
be in Child’s best interest for his life to remain on hold indefinitely in hopes
that Mother will one day be able to act as his parent. See M.E.P., 825 A.2d
at 1276 (“A child’s life simply cannot be put on hold in the hope that the
parent will summon the ability to handle the responsibilities of parenting.”)
(citations omitted). Regrettably, Mother is not entitled to relief.
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Mother’s parental rights
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pursuant to Section 2511(a)(2) and (b), we affirm the order of the orphans’
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2015
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