In Re: L.N.D., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.N.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.N.M. : No. 1572 MDA 2017
Appeal from the Decree, September 21, 2017,
in the Court of Common Pleas of Lancaster County
Orphans’ Court Division at No. 1589-2017
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 20, 2018
B.N.M. (“Mother”) appeals from the decree dated September 21,
2017,1 in the Court of Common Pleas of Lancaster County, granting the
petition of Lancaster County Children and Youth Social Service Agency
(the “Agency”) and involuntarily terminating her parental rights to her
minor, dependent child, L.N.D. (the “Child”), a female born in August of
2015, pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
1 While the docket reflects a docket date of September 21, 2017, and the
decree indicates copies were sent, there is no notation on the docket that
notice was given and that the order was entered for purposes of
Pa.R.C.P. 236(b). See Frazier v. City of Philadelphia, 735 A.2d 113, 115
(Pa. 1999) (holding that “an order is not appealable until it is entered on the
docket with the required notation that appropriate notice has been given”).
See also Pa.R.A.P. 108(a) (entry of an order is designated as “the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.C.P. 236(b)”.). While we consider
the matter on the merits, we caution the Lancaster County Prothonotary’s
Office as to compliance with the rules with regard to the entry of orders.
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and (8).2, 3 After review, we affirm, and we deny, without prejudice, counsel
for Mother’s petition to withdraw as counsel.
The trial court summarized the relevant procedural and/or factual
history as follows:
Procedural History
On March 30, 2016, the [Agency] filed a
Petition for Temporary Custody of [Child]. A Shelter
Care Order was entered following a hearing on
March 31, 2016. Father failed to appear for the
Shelter Care Hearing despite receiving notice.
Mother appeared but waived the Shelter Care
Hearing without admitting any allegations. Following
a hearing on April 14, 2016, the [c]ourt adjudicated
the child dependent and approved a child
permanency plan with the goal of return to parents
and a concurrent placement goal of adoption.
Mother attended the Adjudication and Disposition
Hearing but Father did not. On July 20, 2017, the
Agency petitioned to terminate the parental rights of
[Father] and [Mother] to [Child] pursuant to
23 Pa.C.S.A. §2511(a)(1), (2), (5), and (8). A
hearing on the termination petition was held on
2By the same decree, the trial court additionally involuntarily terminated the
parental rights of Child’s father, C.D. (“Father”), pursuant to 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), and (8). Father filed a separate appeal addressed by
separate Memorandum at Superior Court Docket No. 1629 MDA 2017.
3 At the time of Child’s birth, Mother was married to N.M.
(“presumptive father”). Presumptive father’s parental rights were
terminated on August 24, 2017. (Notes of testimony, 9/21/17 at 62-63,
107; decree, 8/24/17.) Notably, paternity testing established Father’s
paternity in June 2016. (Notes of testimony, 9/21/17 at 107.)
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September 21, 2017[4, 5] and the [c]ourt issued a
decree involuntarily terminating Mother’s and
Father’s rights to [Child].[6] Mother and Father, on
October 13, 2017, and October 23, 2017,
respectively, filed a Notice of Appeal to the Superior
Court of Pennsylvania of the September 21, 2017
Orphans’ Court Order terminating their parental
rights.
Factual History
The Agency became involved with Mother and
Father since the birth of Child in August of 2015.
Due to the baby’s low birth weight and signs of
withdrawal symptoms due to morphine and other
medications Mother was taking during her
pregnancy, Child remained in the neonatal care unit
several weeks following her birth. The Agency
attempted to avoid placement of the Child but
Mother and Father did not participate in random drug
4 The Agency presented the testimony of Jonathan Gransee, Psy.D., clinical
psychologist, who performed a psychological evaluation of Mother and a
parenting capacity evaluation of Father; and Caitlin Hoover, Agency
caseworker. The Agency additionally offered Exhibits P-1 through P-5,
which, upon review, were never admitted on the record.
Notably, Mother, who was represented by counsel, was not present
due to alleged health issues, and no evidence was presented on her behalf.
Father, also represented by counsel, was present but did not testify or
present any evidence on his behalf.
5 Guardian ad litem, Cynthia L. Garman, Esq., also participated in these
proceedings. Ms. Garman argued and filed a brief in support of the
termination of parental rights. A Court Appointed Special Advocate (“CASA”)
was additionally appointed. The record reveals that the CASA recommended
Child remain where placed and also favored termination of parental rights.
(Notes of testimony, 9/21/17 at 110.) We observe that this report was not
marked and admitted as part of the record.
6 While the decree only indicates termination pursuant to Subsections (a)(1),
(2), (5), and (8), the record reflects that evidence was presented with
regard to Subsection (b) and the trial court addressed Subsection (b) both
on the record and in its Rule 1925(a) opinion.
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screens and violated the safety plan. The Agency
took custody of the Child on March 30, 201[6]. At
the time of the termination hearing, Mother and
Father failed to make significant progress and,
neither parent had completed any goal on their
reunification plans.
Trial court opinion, 11/3/17 at 1-2 (unpaginated).
On appeal, Mother raises the following issues for our review:
I. Whether the [c]ourt erred in denying Mother’s
request for a continuance of the termination of
parental rights hearing due to her health
issues?
II. Whether the [c]ourt erred when it terminated
Mother’s rights?
III. Whether the [c]ourt erred in concluding that
Mother had, by conduct continuing for more
than six (6) months, evidenced a settled
purpose of relinquishing parental claim to the
child and had refused or failed to perform her
parental duties?
IV. Whether the [c]ourt erred in concluding that
the evidence clearly and convincingly
established that the repeated and continued
incapacity, neglect, or refusal of Mother had
caused the child to be without essential
parental care, control and subsistence
necessary for her physical and mental well-
being and that the conditions and causes of the
incapacity, neglect, or refusal cannot or will not
be remedied by Mother?
V. Whether the [c]ourt erred in concluding that
the Lancaster County Children and Youth
Agency had met its burden in proving that
Mother’s parental rights should be terminated
when there was evidence that Mother had been
actively working on and completing the goals
on her child permanency plan?
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VI. Whether the [c]ourt erred in finding that
terminating Mother’s parental rights would best
serve the needs and welfare of the child?
Mother’s brief at 8-9.
At the outset, we address Mother’s challenge to the trial court’s denial
of counsel’s request for a continuance on her behalf at the termination
hearing. “It is well settled that the decision to grant or deny a request for a
continuance is within the sound discretion of the trial court.”
Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa.Super. 2009) (citation
omitted). “Further a trial court’s decision to deny a request for a
continuance will be reversed only upon a showing of an abuse of discretion.”
Id. As we have consistently stated, an abuse of discretion is not merely an
error in judgment. Id. Rather, discretion is abused when “the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown
by the evidence or the record.” Id.In concluding that the denial of Mother’s request for a continuance was
proper, the trial court reasoned as follows:
It was proper for the [c]ourt to deny Mother’s
request for a continuance. Mother has had a long
history of asking for continuances in this case. In
the past, Mother has asked for continuances stating
she has a medical appointment that conflicts with the
time of the hearing when in fact there was no conflict
in time. Mother also had a criminal hearing
scheduled for September 18, 2017, for which she did
not appear and a warrant was issued for her arrest.
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Mother claims her health issues caused her mobility
problems but she refused to attend the hearing via
telephone. Mother has canceled appointments
related to her objectives. In one instance, she
stated she wanted to attend Child’s doctor
appointments. She never rescheduled her canceled
appointments nor did she attend Child’s
appointments. She has failed to appear for
scheduled drug tests. She was discharged from her
domestic violence offenders group for missing
five (5) sessions. Originally[,] Mother was granted
weekly visits with Child. However, after missing
thirty-two (32) [of] forty-five (45) visits, her visits
decreased to bi[-]weekly. Mother missed seven (7)
of the eleven (11) bi-weekly visits. Mother
requested that her visits take place in the home due
to her health problems to which [the] Agency
requested a letter from a doctor stating that Mother
was unable to go to the [A]gency for visits and visits
needed to take place in her home. No letter was
ever presented to the [A]gency. For all these stated
reasons, it was proper for the [c]ourt to deny
Mother’s request for a continuance.
Trial court opinion, 11/3/17 at 2-3 (citations omitted).
Mother, however, argues that the court’s denial of the request for a
continuance amounted to “a deprivation of her right to testify on her own
behalf and to participate in the proceedings.” (Mother’s brief at 15.) In so
arguing, Mother references In re Adoption of A.N.P., 155 A.3d 56, 68
(Pa.Super. 2017), a case where a panel of this court found that “the trial
court violated Mother’s constitutional guarantee to due process when it
precluded her from the opportunity to be heard.” Mother asserts as follows:
Similarly, in the instant case, the trial [c]ourt’s
denial of counsel’s request for a continuance denied
Mother the opportunity to participate, testify, and
present evidence on her own behalf and it denied her
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counsel the ability to present evidence in the form of
Mother’s testimony. Essentially, the trial [c]ourt
violated Mother’s constitutional guarantee to due
process when it denied counsel’s continuance
request because Mother was precluded from
presenting her case to the [c]ourt. Based upon the
above, Mother requests that the Decree and Order
terminating her rights to her child be vacated, that
the case be remanded for further proceedings before
the trial [c]ourt, and that she be given the
opportunity to present her case at subsequent
proceedings before the [c]ourt.
Mother’s brief at 17. We disagree.
Upon review, we discern no abuse of discretion with regard to the
denial of the request for a continuance, and as such, we do not disturb the
court’s determination. We find that the factual circumstances of A.N.P. are
distinguishable from the instant matter. In A.N.P., the mother was present
and was excused from the courtroom during the termination proceedings by
the court after raising illness. The court then refused to allow the mother
re-entry and to allow the presentation of her testimony. A.N.P., 155 A.3d
at 56-57. Here, however, Mother, who had a history of continuances,
cancellations, and non-appearances, failed to appear. Mother e-mailed her
counsel the morning of the termination hearing indicating medical issues and
an appointment that morning without any supporting medical documentation
establishing that she could not attend the hearing. (Notes of testimony,
9/21/17 at 4-9.) Mother’s first issue is, thus, without merit.
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We next proceed to Mother’s challenge to the court’s termination of
her parental rights. In matters involving involuntary termination of parental
rights, our standard of review is as follows:
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.”
In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). “If the factual findings are supported,
appellate courts review to determine if the trial court
made an error of law or abused its discretion.” Id.“[A] decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-
will.” Id. The trial court’s decision, however, should
not be reversed merely because the record would
support a different result. Id. at 827. We have
previously emphasized our deference to trial courts
that often have first-hand observations of the parties
spanning multiple hearings. See In re R.J.T.,
9 A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial 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) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
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of the grounds for termination followed by the needs and welfare of the
child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. 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). We
have defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.”
In re C.S., 761 A.2d at 1201, quoting Matter of Adoption of Charles
E.D.M., II, 708 A.2d 88, 91 (Pa. 1998). In this case, the trial court
terminated Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), and (8). We have long held that, in order to affirm a termination of
parental rights, we need only agree with the trial court as to any one
subsection of Section 2511(a), as well as Section 2511(b). See In re
B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we analyze
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the court’s termination decree pursuant to Subsections 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.
....
(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).
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We first address whether the trial 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 Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002). “Parents are required to make diligent efforts towards the
reasonably prompt assumption of full parental responsibilities. . . . [A]
parent’s vow to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may properly be rejected
as untimely or disingenuous.” In re A.L.D., 797 A.2d at 340 (internal
quotation marks and citations omitted).
Instantly, in finding grounds for termination pursuant to
Subsection (a), the trial court stated the following:
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Despite Child[’s] being in Agency custody for
eighteen months, Mother failed to complete any of
her plan’s objective[s]. Mother has not remained
drug free. Mother was asked to complete a drug and
alcohol evaluation by an Agency[-]approved drug
and alcohol provider and was referred by the Agency
to an approved provider on July 18, 2016. On
July 29, 2016, Mother contacted the Agency and
reported being admitted into a program for detox.
Upon discharge, another appointment was set up for
an evaluation on August 17, 2016. Mother did not
follow through with this appointment. Mother was
asked to complete another drug and alcohol
evaluation to allow the Agency to provide input.
Mother agreed to have another evaluation done but
never followed through. Mother was admitted for
inpatient treatment on August 29, 2016.
Mother was drug screened prior to her child
visits. On more than one occasion, Mother tested
positive for Opiates and Benzodiazepine for which
she did not have a valid prescription. On numerous
occasions, Mother refused the Agency’s request for a
drug screen. On August 24, 2017, the [c]ourt
ordered Mother to complete a drug screen. Mother
refused to be screened at that time. She said she
had an appointment but would return to the Agency
later that day. Mother never came that day nor any
day thereafter. The Agency contacted Mother the
morning of September 14, 2017 to come in for a
drug screening before the close of the day. Mother
refused stating she had other things to do.
Mother failed to improve her mental health
functioning. Although knowing since July 18, 2016,
she needed to complete a psychological evaluation
with Dr. Jonath[a]n Gransee, Mother did not have
her evaluation until August of 2017. Dr. Gransee
was reluctant to complete Mother’s evaluation
because of her threatening and hostile behavior
towards him. Dr. Gransee recommended that
Mother participate in anger management, a drug and
alcohol evaluation, medication management, and no
less than twenty-six (26) weekly individual therapy
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sessions. At the time of the hearing, Mother had
attended only six (6) individual therapy sessions and
was close to being discharged from therapy for poor
attendance.
Mother failed to complete the domestic
violence objective by not completing domestic
violence offenders therapy. Mother was admitted to
a twelve (12)[-]week program, however, Mother was
discharged from the program after missing five (5)
classes.
Mother has not remained crime free. Mother
owes approximately twenty-four hundred dollars
($2,400) in parking fines, has missed payments, and
was arrested on a warrant on August 23, 2017.
Mother also failed to resolve her drug charges.
Mother did not appear for her court date on those
charges and a warrant was issued for her arrest on
January 28, 2017.
Mother has not completed her objectives of
financial and housing stability. Mother has not
provided Agency with proof of income despite
claiming she receives social security and food
stamps. Mother currently resides with her husband,
father and her other children. Mother’s relationship
with [her] husband is unstable and abusive.
Mother’s nineteen (19)[-]year[-]old son also resides
in the home. The son has been convicted of ten (10)
felony counts of child pornography and it is not
recommended that he be around any child more than
two years younger than he without supervision.
Originally[,] Mother was granted weekly visits
with Child. However, after missing thirty-two (32)
[of] forty-five (45) visits, her visits decreased to
bi[-]weekly in March 20, 2017. Thereafter, she
missed seven (7) of the eleven (11) bi-weekly visits.
Mother requested her visits take place in the home
due to her health problems. The Agency requested a
letter from a doctor stating that Mother was unable
to go to the Agency for visits and that the visits
needed to take place in her home. No letter was
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ever presented to the Agency by Mother. The last
visit Mother had with Child was on August 31,
2016.[7]
Trial court opinion, 11/3/17 at 5-6 (unpaginated; citations omitted).
Mother, however, argues that the court erred in determining that she
had failed to complete any objectives established. (Mother’s brief at 27-31.)
Mother asserts that her drug and alcohol, mental health, and domestic
violence objectives were ongoing, not incomplete. (Id. at 27-29.) She
further maintains that the Agency’s failure to make a referral for parenting
prevented her completion of this objective. (Id. at 29-30.) Likewise,
Mother argues that she completed her housing and income objectives. (Id.
at 30-31.) Lastly, as to her commitment objective, Mother contends that “it
was unreasonable for the Agency not to grant Mother’s requests for home
visits. Due to the Agency’s actions, Mother missed several visits with the
child.” (Id. at 30.) Mother, therefore, maintains that “the only objective
that was incomplete at the time of the hearing was parenting. . . ,” which, as
indicated, she blames on the Agency. (Id. at 31.) We disagree.
A review of the record supports the trial court’s determination of a
basis for termination under Section 2511(a)(2). As we discern no abuse of
discretion or error of law, we do not disturb the court’s findings. The
evidence reveals that Mother failed to complete her established objectives
7 Given that Mother’s visitation decreased to bi-weekly in March 2017, it
would appear that this is a misstatement as to when her last visit with Child
occurred.
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contained within her child permanency plan. Agency caseworker,
Caitlin Hoover, recounted Mother’s objectives as: to remain free from drugs
and the misuse of alcohol, to improve mental health functioning to the
extent that she can care for her child, to remain free of domestic violence, to
remain crime free, to learn and use good parenting skills, to be financially
stable in order to provide for herself and her child, to obtain and maintain a
home free and clear of hazards for herself and her child, and to maintain an
ongoing commitment to her child. (Notes of testimony, 9/21/17 at 64,
69-73.) Significantly, Ms. Hoover testified that Mother failed to complete her
objectives. (Id. at 76.)
Further, Dr. Gransee testified as to Mother’s perceiving herself as and
acting and reacting as a victim, which could be harmful to those around her.
(Id. at 27-30.) Specifically, he stated that others “may develop trauma
disorders as well.” (Id. at 29.) He further explained how Mother’s
behaviors may in effect “continu[e] the pattern, the cycle of abuse from
generation to generation. . . .” (Id. at 30.) Dr. Gransee opined that,
despite Mother’s reported therapy, he was not hopeful as to her ability to
change in the future. (Id. at 30-31.)
As this court has stated, “[A] child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume
parenting responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims
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of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa.Super. 2006). Hence, the record substantiates the conclusion
that Mother’s repeated and continued incapacity, abuse, neglect, or refusal
has caused Child to be without essential parental control or subsistence
necessary for their physical and mental well-being. See In re Adoption of
M.E.P., 825 A.2d at 1272. Moreover, Mother cannot or will not remedy this
situation. See id.As noted above, in order to affirm a termination of parental rights, we
need only agree with the trial court as to any one subsection of
Section 2511(a) before assessing the determination under Section 2511(b).
In re B.L.W., 843 A.2d at 384. We, therefore, need not address any further
subsection of Section 2511(a) and turn to whether termination was proper
under Section 2511(b).
As to Section 2511(b), our supreme court has stated as follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b).
The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles
such as love, comfort, security, and stability.”
In re K.M., 53 A.3d 781, 791 (Pa.Super. 2012). In
In re E.M., 620 A.2d [481, 485 (Pa. 1993)], this
Court held that the determination of the child’s
“needs and welfare” requires consideration of the
emotional bonds between the parent and child. The
“utmost attention” should be paid to discerning the
effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
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However, as discussed below, evaluation of a child’s
bonds is not always an easy task.
In re T.S.M., 71 A.3d at 267. “In 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).
When evaluating a parental bond, “[T]he court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
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.
[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. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M.,
33 A.3d 95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
Our supreme court has stated that, “[c]ommon sense dictates that
courts considering termination must also consider whether the children are
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in a pre-adoptive home and whether they have a bond with their foster
parents.” T.S.M., supra 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 determining that termination of Mother’s parental rights favored the
Child’s needs and welfare, the court reasoned as follows:
The Child’s best interest is served by her
remaining in foster care and being adopted. She has
been in care for eighteen (18) months, since
seven (7) months of age. The [c]ourt is convinced
that the parents will not resolve their significant
issues in a reasonable amount of time. Child is
thriving in a loving and healthy home which is a
potentially permanent resource. She has clearly
bonded with the resource parents, and the other
child in the home. By now, any bonding with parents
is very limited at best. Child cannot wait for an
indefinite period of time for the stability and care of
a permanent family in the hope that her biological
parents will drastically change their behavior and
accomplish their goals. She is doing well and has
spent more time with their current family than with
anyone else. It is clear to this [c]ourt that the best
interest of Child is served by terminating the rights
of the parents and having her being adopted. The
[CASA] and the Guardian ad litem support the
termination of parental rights.
Trial court opinion, 11/3/17 at 7-8 (unpaginated; citations to record
omitted).
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Mother, however, asserts error, citing a lack of evidence to support the
court’s findings as to bonding. (Mother’s brief at 31-32.) Mother states:
[T]he [c]ourt concluded that the child has “clearly
bonded with the resource parents, and the other
child in the home.” However, no evidence was
presented to support this finding. No bonding
assessment was done and the [CASA] did not
provide any testimony at the hearing. Additionally,
there was no basis for the [c]ourt to conclude that
“by now, any bonding with parents is very limited at
best.” Based upon the above, it was error for the
[c]ourt to conclude that terminating Mother’s
parental rights would be in the child’s best interests.
Id. (citations to record omitted).
Upon review, we again discern no abuse of discretion. The record
supports the trial court’s finding that Child’s developmental, physical, and
emotional needs and welfare favor termination of Mother’s parental rights
pursuant to Section 2511(b). There was sufficient evidence to allow the trial
court to make a determination of Child’s needs and welfare, and as to the
existence of a lack of a bond between Mother and Child that, if severed,
would not have a detrimental impact on her.
While Ms. Hoover testified that Mother’s visits with Child went well
(notes of testimony, 9/21/17 at 109-110), she confirmed that Mother missed
a total of 39 of 56 visits with Child. (Id. at 73-75.) Moreover, Child was in
the same pre-adoptive home since placement and was doing well and
bonded with her resource family. (Id. at 85-86.) Ms. Hoover offered that
Child “has developed a close relationship and attachment with her resource
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parents and their adopted daughter. [Child] also enjoys playing with
resource parents’ two dogs.” (Id. at 86.) As such, Ms. Hoover opined that
it was in Child’s best interests to terminate parental rights. She stated:
The [Agency] believes that termination of parental
rights would be in Child’s best interest so that she
may be adopted and have a stable permanent home.
Prolonging this child in foster care and not allowing
her stability and permanency in her life would cause
more harm than termination of parental rights.
Id. It was noted on the record that the CASA also recommended Child
remain in her resource home and favored termination of parental rights.
(Id. at 110.)
Thus, as confirmed by the record, termination of Mother’s parental
rights serves Child’s developmental, physical, and emotional needs and
welfare and was proper pursuant to Section 2511(b). While Mother may
profess to love Child, a parent’s own feelings of love and affection for a child,
alone, will not preclude termination of parental rights. In re Z.P., 994 A.2d
at 1121. As we stated, 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.” Id. at 1125. Rather, “a parent’s basic constitutional right to the
custody and rearing of his 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)
(citation omitted).
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Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Mother’s
parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).
Lastly, court-appointed counsel for Mother additionally has filed a
petition to withdraw as counsel. Counsel indicates that, by electronic mail
dated January 6, 2018, Mother “no longer want[s] her involved in” and
“discharged her from the case.” (Petition of counsel to withdraw
appearance, 1/18/18 at ¶10.) Counsel further notes that she advised
Mother of the filing of the within petition and availability of her file without
response. (Id. at ¶13.) However, as there is no simultaneous entry of
appearance of another counsel on Mother’s behalf, or suggestion thereof, we
deny counsel’s petition without prejudice. See Pennsylvania Orphans’ Court
Rules 1.7(b) (“Counsel who has entered an appearance before the court as
provided in subparagraph (a) shall not be permitted to withdraw without
filing a petition to withdraw and obtaining the court’s leave, unless . . . there
is a simultaneous entry of appearance by other counsel that will not delay
the litigation.”).
Decree affirmed. Petition to withdraw as counsel denied without
prejudice to petition the Orphans’ Court. If the court grants the petition to
withdraw, then it should make a determination as to whether substitute
counsel is required for any further appellate review.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/20/2018
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