In Re: Adoption of: A.D., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: H.R., MOTHER :
: No. 555 MDA 2016
Appeal from the Decree March 10, 2016
in the Court of Common Pleas of Northumberland County
Orphans’ Court at No.: Adoptee 47-2015
BEFORE: STABILE, DUBOW, AND PLATT, JJ.
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 14, 2016
H.R. (Mother) appeals the decree of the Court of Common Pleas of
Northumberland County, entered March 10, 2016, that terminated her
parental rights to her daughter, A.D. (Child), born in November of 2008. We
affirm.1
Northumberland County Children and Youth Social Service Agency
(CYS) became involved with Child in May of 2014, when it received a
General Protective Services (GPS) referral that local police had responded to
Mother’s home after she was found unconscious on railroad tracks while
Child tried to wake her. An investigation revealed that Mother had
overdosed. CYS placed Child informally with her maternal grandmother
(Grandmother).

Retired Senior Judge assigned to Superior Court.
1
The trial court also terminated the parental rights of Child’s father, C.D.
(Father), who did not attend the hearing, despite notice. (See N.T. Hearing,
3/10/16, at 3-4). Father did not appeal the termination of his parental
rights.
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One month later, on June 9, 2014, a GPS report revealed that Mother
and Child had been in an automobile accident while Mother was under the
influence. Mother was severely injured. Child was injured but she did not
require inpatient treatment. Child was in a booster seat that was not
properly buckled, causing Child to become wedged between the steering
wheel and the windshield. Mother had taken Child from Grandmother while
Grandmother slept.
CYS staff visited Grandmother’s home on July 8, 2014, to find Mother
present and under the influence. On July 10, 2014, Mother contacted CYS to
tell them she had been kicked out of rehab and that she did not want Child
to remain with Grandmother because she and Grandmother had gotten into
a physical altercation on the previous night. Mother also told CYS that her
brother was coming from Connecticut and that she intended to leave the
area with him and Child.
CYS discovered that Mother had discharged herself from the
rehabilitation facility against medical advice, giving the facility false
information about having to care for her sick mother and having to take her
child to school. In addition, CYS learned that a warrant had been issued for
Mother for her failure to pay certain fines. CYS also learned that Mother did
have a brother, but that he lived in Massachusetts, not Connecticut.
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The trial court granted CYS’ request and placed Child in the temporary
legal and physical custody of CYS. Child remained in foster placement at the
time of the termination hearing in this matter, almost two years later.
CYS filed its petition to terminate Mother’s parental rights on October
5, 2015. Mother was incarcerated on November 2, 2015, for a probation
violation, and is serving a one to two year prison sentence. The trial court
held a hearing on CYS’ petition on March 10, 2016. Testifying at that
hearing, in addition to Mother, were CYS caseworkers, Sarah Hepler, Lindsay
Ruth, Jennifer Donmyer, and Amanda Thomas; CYS family resource worker,
Kathy George; and Child’s foster mother, J.S. The trial court entered its
decree terminating Mother’s parental rights pursuant to 23 Pa.C.S.A. §§
2511(a)(1), (2), (5), (8), and (b) on March 10, 2016. Mother filed her
notice of appeal and statement of errors complained of on appeal on April 4,
2016. See Pa.R.A.P. 1925(a)(2)(i). The trial court entered its opinion on
May 24, 2016. See Pa.R.A.P. 1925(a)(2)(ii).
Mother raises the following questions for our review:
I. Whether the trial court erred in determining that [CYS]
presented clear and convincing evidence that grounds for
involuntary termination exist?
II. Whether the trial court erred in determining that the best
interests of [] Child would be served by terminating parental
rights?
III. Whether the trial court erred in by [sic] denying Mother[’]s
request for a bonding assessment before it determined that []
Child’s best interests would be served by terminating Mother’s
parental rights?
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(Mother’s Brief, at 9) (unnecessary capitalization omitted).2
Our standard of review is as follows:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court’s findings are supported by competent
evidence of record, we must affirm the hearing court even
though the record could support an opposite result.
We are bound by the findings of the trial court
which have adequate support in the record so long
as the findings do not evidence capricious disregard
for competent and credible evidence. 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.
Though we are not bound by the trial court’s
inferences and deductions, we may reject its
conclusions only if they involve errors of law or are
clearly unreasonable in light of the trial court’s
sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
The trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). In order to affirm the
2
No other party to this matter has filed a brief or other pleading or notice in
response to Mother’s Brief.
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termination of parental rights, this Court need only agree with any one
subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Requests to have a natural parent’s parental rights terminated are governed
by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 2511. Grounds for involuntary termination
(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:
(1) The 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.
* * *
(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)(1), (b).
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which requires evidence that is “so clear, direct,
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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 T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations omitted). Further,
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable firmness
in resisting obstacles placed in the path of maintaining the
parent-child relationship. Parental rights are not preserved by
waiting for a more suitable or convenient time to perform one’s
parental responsibilities while others provide the child with his or
her physical and emotional needs.
In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation
omitted).
To terminate parental rights pursuant to subsection 2511(a)(1), the
person or agency seeking termination must demonstrate through clear and
convincing evidence that, for a period of at least six months prior to the
filing of the petition, the parent’s conduct demonstrates a settled purpose to
relinquish parental rights or that the parent has refused or failed to perform
parental duties. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.
Super. 2003).
With respect to subsection 2511(a)(1), our Supreme Court has held:
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
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Matter of Adoption of Charles E.D. M., II, 708 A.2d 88, 92 (Pa. 1998)
(citation omitted). Also,
the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re N.M.B., 856 A.2d 847, 854-55 (Pa. Super. 2004), appeal denied, 872
A.2d 1200 (Pa. 2005) (citations omitted).
In regard to incarcerated persons, our Supreme Court has stated:
[I]ncarceration is a factor, and indeed can be a determinative
factor, in a court’s conclusion that grounds for termination exist
under § 2511(a)(2) where the repeated and continued incapacity
of a parent due to incarceration has caused the child to be
without essential parental care, control or subsistence and that
the causes of the incapacity cannot or will not be remedied.
* * *
[W]e now definitively hold that incarceration, while not a
litmus test for termination, can be determinative of the question
of whether a parent is incapable of providing essential parental
care, control or subsistence and the length of the remaining
confinement can be considered as highly relevant to whether the
conditions and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent, sufficient to
provide grounds for termination pursuant to 23 Pa.C.S.[A.] §
2511(a)(2). . . . trial courts must carefully review the individual
circumstances for every child to determine, inter alia, how a
parent’s incarceration will factor into an assessment of the child’s
best interest.
In re Adoption of S.P., 47 A.3d 817, 828, 830-31 (Pa. 2012) (case
citations and quotation marks omitted).
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The Adoption Act provides that a trial 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 Act does not make
specific reference to an evaluation of the bond between parent and child, but
our case law requires the evaluation of any such bond. See In re E.M., 620
A.2d 481, 485 (Pa. 1993). However, this Court has held that the trial court
is not required by statute or precedent to order a formal bonding evaluation
performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.
Super. 2008).
In her first issue, Mother claims that CYS failed to establish by clear
and convincing evidence that grounds exist for involuntary termination of
her parental rights. (See Mother’s Brief, at 12). We disagree.
We have reviewed the record in this matter and find that the record
contains sufficient evidence to terminate Mother’s parental rights pursuant to
subsection 2511(a)(1). We quote the trial court’s findings in that regard,
with approval:
Six (6) hearings were held in the dependency portion of
this case dealing with [Child]. If one thing is clear from the
evidence presented at the hearings and again recounted during
the hearing on the termination of [Mother’s] parental rights, it is
the fact that [Mother] has been a total and abject failure at
addressing her addiction. Despite repeated attempts by [CYS]
to help [M]other address her addiction, she was repeatedly
unable or unwilling to complete any program she entered.
Despite several inpatient and outpatient programs, each saw
[Mother] unsuccessfully discharged for non-compliance.
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Upon [Mother’s] discharge from these programs, we find
her reverting back to her prior addictive behaviors. The record
is replete with her failures; it is replete to the point of
redundancy with the occasions that [Mother] was under the
influence with her contacts with [CYS], be they in person or by
phone. Perhaps most disturbing and distressing are the
occasions when she was under the influence during visitations
with [Child].
We find the statement of one of the caseworkers who
testified at the termination proceedings to be the most telling
when she was asked to characterize whether [Mother’s] love for
[Child] was strong. The caseworker testified,
“I think it is, but, there’s times that I think
other things in [Mother’s] life that come to be a
priority, but she can’t control, that goes over priority
of [Child].” (N.T. Hearing, 3/10/2016, at 85).
We agree. [Mother’s] addictions, her “binging” of drugs as
she herself repeatedly admitted were and to this day in the view
of this [c]ourt, are still her priority. [CYS] helped her attempt to
get her priorities in order [through] various types of treatment to
no avail. Even the risk of losing [Child], whom she professes to
love so much, is not enough for this woman to get her priorities
in order. This failure to address her addictions has now left her
to be serving a one to two year prison sentence in a State
Correctional Institut[ion]. Most telling is that the underlying
charge for her current sentence is Endangering the Welfare of
Children. [Child] has been and will continue to be at risk given
[Mother’s] priority of binging her prescription drugs over
providing for the safety and needs of [Child].
* * *
Part one of the bifurcated analysis required this Court to
review the conduct of the natural mother in this case. We
believe we more than adequately set forth in the first section of
this opinion the complete failings of [Mother] by clear and
convincing evidence. She has failed to perform her parental
duties or complete those steps necessary to allow her to perform
her parental duties for a period of at least six (6) months, in this
case eighteen (18) months[.]
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(Trial Court Opinion, 5/24/16, at 3-4, 6) (record citation formatting
provided).
The trial court did not err or abuse its discretion when it terminated
Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1).
With respect to her second issue, Mother argues that the termination
of her parental rights would not be in Child’s best interest because her
incarceration will be relatively brief and she will then be able to once again
care for Child. (See Mother’s Brief, at 22). We disagree.
We again quote the trial court, with approval, as it discusses Child’s
best interests and welfare:
During the termination hearing, this [c]ourt heard the
testimony of several caseworkers, a resource worker and the
foster mother as to their observations of the interactions
between [Mother] and [Child] and most telling the effects of the
visitation between [Mother] and [C]hild on [Child]. This
evidence did in fact demonstrate that there is a bond between
[Mother] and [Child]. It encompasses love, however, it is not a
maternal bond between [a] mother and [a] child, it is an
unnatural bond. From our perspective, it is more of a bond a
familiarity. It is a bond where seemingly the roles have been
reversed with [Child] assuming the role of maturity and
[Mother] an almost child-like emotional mind set.
The testimony and observations of all clearly demonstrate
[Child] keeps an emotional distance from [Mother] during the
visitations and exhibits a demeanor of reserve and wariness as
to what to expect. The testimony of the [f]oster [m]other was
the most telling and most compelling to us. She outlined the
negative impact the visitations have upon [Child] after her
visitation with [Mother]. She outlined the acting out behaviors
of [Child] post visitation. She testified as to the anxieties
[Child] suffered through when visitations were scheduled with
[Mother]. On the one hand excited to see [Mother], on the
other, trepidation as to the condition [Mother] would be in,
sober or under the influence.
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Finally, the [f]oster [m]other provided testimony of the
stability and enjoyment [Child] finds in the foster home. We
understand the [f]oster [p]arents are willing to make this a
permanent arrangement and [Child] herself looks forward to
this stability as well. Thus, in our view while a bond may exist
between [Mother] and [Child] it is not one worthy of
preservation.
For all the foregoing reasons, we find it was in the best
interest of [Child] by clear, convincing and compelling evidence
to involuntarily terminate the parental rights of [Mother].
(Trial Ct. Op., at 8-9).
The trial court did not err or abuse its discretion when it determined
that the termination of Mother’s parental rights was in Child’s best interests.
Finally, Mother complains that the trial court erred when it failed to
order a bonding assessment of the bond between her and Child. However,
she did not include this issue in her statement of errors complained of on
appeal, and accordingly, it is waived. See Pa.R.A.P. 1925(b)(4)(vii).
Moreover, the trial court is not required by the Adoption Act or our case law
to order a formal bonding evaluation performed by an expert. See In re
K.K.R.-S., supra at 533. Mother’s third issue would not merit relief.
Accordingly, we affirm the decree of the Court of Common Pleas of
Northumberland County that terminated Mother’s parental rights pursuant to
23 Pa.C.S.A. §§ 2511(a)(1) and (b).
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2016
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