In Re: Adoption of A.E.C., Minor Child ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.E.C, MINOR IN THE SUPERIOR COURT OF
CHILD PENNSYLVANIA
APPEAL OF: L.D., MOTHER
No. 1964 MDA 2014
Appeal from the Decree October 16, 2014
In the Court of Common Pleas of Northumberland County
Orphans' Court at No(s): 18-2014
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED JUNE 30, 2015
L.D. (“Mother”) appeals from the decree entered October 16, 2014, in
the Court of Common Pleas of Northumberland County, which involuntarily
terminated her parental rights to her minor daughter, A.E.C. (“Child”). 1 We
affirm.
The record reveals the relevant factual and procedural history, as
follows. Northumberland County Children and Youth Services (“CYS”)
received a referral regarding the birth of Child in December of 2012. N.T.,
10/8/2014 (Part 1), at 17. At the time Child was born, Mother tested
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1
By separate decree entered that same day, the orphans’ court involuntarily
terminated the parental rights of Child’s father, J.C., Jr. (“Father”), from
which he filed a notice of appeal. The disposition of Father’s appeal is by
separate memorandum.
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positive for opiates and morphine, while Child tested positive for opiates and
amphetamines. Id. Mother later admitted that she used heroin during her
pregnancy, and that she received little, if any, prenatal care. Id. at 19.
Child initially was scheduled to be released from the hospital in early January
of 2013. Id. at 20. However, Child’s discharge was delayed because she
was diagnosed with congenital nephrotic syndrome, a severe kidney
condition. Id. Child began receiving infusions of albumin, and had a kidney
removed when she was approximately two months old. Id. at 21. Child
began dialysis treatments when she was several months old. Id.
When Child was about four months old, she was discharged from the
hospital and returned to the care of Mother and Father, who began residing
in the home of Child’s paternal grandfather and his wife. Id. However,
Child was not gaining the desired amount of weight, and Mother claimed
repeatedly that she was unable to provide a urine sample so that CYS could
perform drug screens. Id. at 22-23. Mother and Father also failed to bring
Child to two of her appointments, and were late in bringing Child to a third.
Id. at 23-24, 26-27. Ultimately, Mother signed a voluntary entrustment
agreement placing Child in the care of CYS on May 3, 2013. Id. at 22.
Child was adjudicated dependent on June 6, 2013.2
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2
The date of Child’s adjudication of dependency is not clear from the
certified record on appeal. June 6, 2013, is the date provided by the
orphans’ court in its opinion pursuant to Pa.R.A.P. 1925(a).
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On May 29, 2014, CYS filed a petition to involuntarily terminate
Mother’s parental rights to Child.3 A termination hearing was held on
October 8, 2014, during which the orphans’ court heard the testimony of
CYS caseworkers Jennifer Riley, Courtney Underkoffler, and Leslee Maturani.
The court heard further testimony from Child’s foster father, C.Y. (“Foster
Father”), and Mother.4 The court entered its decree terminating Mother’s
parental rights on October 16, 2014. On November 14, 2014, Mother timely
filed a notice of appeal, along with a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother now presents the following issues for our review:
I. Whether the [orphans’] court erred in determining that [CYS]
presented clear and convincing evidence that grounds for
involuntary termination exist?
II. Whether the [orphans’] court erred in determining that the
best interests of the Child would be served by terminating
parental rights?
Mother’s brief at 7 (orphans’ court answers and unnecessary capitalization
omitted).
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3
In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court states that
CYS filed its termination petition on June 3, 2014. However, the petition is
stamped as having been filed on May 29, 2014. On June 3, 2014, the court
entered an order scheduling the termination hearing, and issued notice of
the hearing.
4
The termination hearing was split into two parts. CYS presented its
evidence with respect to Mother during the first part of the hearing, and then
presented its evidence with respect to Father during the second part.
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We review this appeal according to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). 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.; R.I.S., 36
A.3d [567,] 572 [(Pa. 2011) (plurality)]. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
[613] Pa. [371], [455,] 34 A.3d 1, 51 (2011); Christianson v.
Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.
Id.As we discussed in R.J.T., there are clear reasons for applying
an abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d
at 1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826–27 (Pa. 2012).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis:
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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) (citing 23 Pa.C.S.A.
§ 2511). The burden is on the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
Instantly, the orphans’ court terminated Mother’s parental rights
pursuant to Section 2511(a)(1), (2), (5), (8), and (b). This Court need only
agree with any one subsection of 23 Pa.C.S.A. § 2511(a), in addition to
Section 2511(b), in order to affirm the termination of parental rights. In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863
A.2d 1141 (Pa. 2004). Here, we conclude that the orphans’ court properly
terminated Mother’s parental rights pursuant to Sections 2511(a)(1) and
(b), which provide as follows:
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(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) and (b).
With respect to Section 2511(a)(1), “the moving party must produce
clear and convincing evidence of conduct, sustained for at least the six
months prior to the filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or failure to perform
parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008)
(citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)).
Further,
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
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contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
Id. (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.
1998)).
In In re Adoption of S.P., supra, our Supreme Court discussed In
re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a case wherein the
Court considered the issue of the termination of parental rights of
incarcerated persons involving abandonment, which is currently codified at
Section 2511(a)(1). The S.P. Court stated:
Applying in McCray the provision for termination of
parental rights based upon abandonment, now codified as §
2511(a)(1), we noted that a parent “has an affirmative duty to
love, protect and support his child and to make an effort to
maintain communication and association with that child.” Id. at
655. We observed that the father’s incarceration made his
performance of this duty “more difficult.” Id.
In re Adoption of S.P., 47 A.3d at 828. The S.P. Court continued:
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his
or her incarceration. Rather, we must inquire
whether the parent has utilized those resources at
his or her command while in prison in continuing a
close relationship with the child. Where the parent
does not exercise reasonable firmness in declining to
yield to obstacles, his other rights may be forfeited.
[McCray] at 655 (footnotes and internal quotation marks
omitted). . . .
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In re Adoption of S.P., supra; see also In re B.,N.M., 856 A.2d 847, 855
(Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005) (internal
citations omitted) (stating that a parent does not perform his or her parental
duties by displaying a “merely passive interest in the development of the
child”).
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
On appeal, Mother argues that her parental rights should not have
been terminated because she has remedied her drug addiction, and because
she will be able to obtain housing and employment within two to three
months. Mother’s brief at 12-14. Mother also contends that she is willing to
receive the medical training necessary to care for Child. Id. at 14.
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In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court found
as follows:
The Petition for Termination of Parental Rights was filed on
June 3, 2014. The six months immediately preceding this date
correspond with a time period during which [] Mother was
almost entirely out of contact with [CYS] and . . . Child. A
caseworker was able to contact her on February 10, 2014 at the
time and place scheduled for a custody hearing for [] Mother’s
other child. At that time, [] Mother did submit to drug testing,
and the results were positive, however she failed to seek
inpatient treatment as ordered by the [c]ourt in the various
permanency review orders. In fact, she did not seek such
treatment until after her arrest in May of [2014], less than a
month prior to the filing of the termination petition, and [CYS]
was unaware of this until they made contact with her probation
officer. She was discharged from rehabilitation on September 23
of [2014]. [] Mother provided no housing, financial support, or
medical care for . . . Child during this time period. It is unknown
whether she had employment or independent housing during this
time period. She attended two supervised visits on November
12 and December 3 of 2013. She may have visited . . . Child
during an extended hospitalization period between December 17,
2013 and January 17, 2014. [] Mother sent no correspondence
to . . . Child during this time period.
Also during this time period . . . [C]hild was hospitalized
several times and required daily medical care while out of the
hospital. [] Mother did not even attempt to attend medical
training to learn how to address . . . Child’s medical concerns
(despite having been court-ordered to do so), let alone actually
provide any medical support or care for . . . Child. This inaction
on the part of . . . Mother points to both a settled purpose of
relinquishment and a failure to perform parental duties during
the relevant six month period.
Further, an Aggravated Circumstances Order was entered
on July 18, 2014, citing the failure of both [] Father and []
Mother to maintain substantial and continuing contact with . . .
Child for a period of six months. During much of this time
period, . . . Mother’s whereabouts were unknown, as she failed
to maintain contact with [CYS].
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Orphans’ Court Opinion, 12/6/2014, at 5-6 (citations to the record omitted).
The testimonial evidence supports the court’s findings, as follows.
CYS caseworker, Jennifer Riley, testified concerning the circumstances
leading up to Child’s placement in foster care, discussed supra. N.T.,
10/8/2014 (Part 1), at 17-30. After being removed from the care of Mother
and Father on May 3, 2013, Child was hospitalized for approximately 10
days. Id. at 30-31, 33. Mother did not visit with Child during this time,
despite being offered transportation. Id. at 31. After Child was discharged
from the hospital, Mother participated in weekly visitation for a period of two
hours in the maternal grandmother’s home. Id. Mother attended these
visits on a “fairly regular” basis. Id. at 32. Mother also attended group
outpatient counseling. Id. at 33.
Ms. Courtney Underkoffler testified that she was the caseworker
assigned to this matter from July of 2013 until October of 2013. Id. at 37.
During this time, Mother continued to claim that she was unable to produce
a urine sample so that she could be drug tested. Id. at 38. Mother also was
offered biweekly supervised visitation at CYS, but missed “some” of the
visits. Id. at 38-39. Ms. Underkoffler noted that Mother was not visiting
with Child at the hospital as consistently as CYS would have liked. Id. at 39.
Ms. Leslee Maturani testified that she took over as Child’s caseworker
in late October or early November of 2013, and that she has been assigned
to this matter ever since. Id. at 42. During Ms. Maturani’s assignment to
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this case, Mother continued to refuse to provide urine samples. Id. at 43-
44. Finally, Mother produced a urine sample on February 10, 2014, which
tested positive for “oxyies and opiates.” Id. at 44. Ms. Maturani requested
that Mother attend inpatient rehabilitation, and Mother stated that she would
consider it. Id. at 44. Mother was arrested in May of 2014, and
incarcerated. Id. at 44-45. Mother then attended two rehabilitation
programs. Id. at 45. On July 17, 2014, an order was entered finding
aggravated circumstances as to Mother, due to her failure to maintain
substantial and continuing contact with Child for a period of six months. Id.
at 52-53. Mother was released from rehabilitation on September 23, 2014.
Id.
Ms. Maturani further testified that she has supervised two visits
between Mother and Child, which took place on November 12, 2013, and
December 3, 2013. Id. at 46. Tragically, Child suffered a stroke and was
hospitalized on December 4, 2013. Id. Mother visited Child at the hospital
on December 5, 2013, December 6, 2013, and December 8, 2013, which
was Mother’s last documented visit. Id. at 48-50. Child was discharged
from the hospital on approximately December 10, 2013, but was readmitted
on December 17, 2013. Id. at 46, 49. Child remained at the hospital until
January 17, 2014. Id. Ms. Maturani did not have a record of whether or not
Mother visited with Child during this time. Id. Ms. Maturani noted that
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Mother has not requested a visit since that time, and that Mother never
completed the medical training necessary to care for Child.5 Id. at 45, 51.
Mother testified that she did not disagree with any of the prior
witnesses’ testimony. Id. at 71. When asked what she had been doing for
the last six months, Mother responded, “Drugs, rehab, incarceration. I was
out for two days, overdosed, back into jail, incarcerated, and rehab.” Id. at
71. Mother stated that she did not learn anything during her first two stays
in rehabilitation programs, but that her most recent stay was very helpful.
Id. at 71-72. Mother claimed that she has been clean for 145 days, and
that she currently is attending intensive outpatient treatment three days per
week, inter alia. Id. at 72. Mother indicated that she has not visited with
Child because of her addiction. Id. at 76. Mother admitted that she has the
phone number for CYS, and that she lives only a five-minute walk away from
CYS. Id. at 75-76. Still, Mother acknowledged that she did not contact CYS
in order to have contact with Child. Id. at 76.
Mother further testified that she is “not looking to get [Child] back
right now like today. All I’m looking for is a chance.” Id. at 73. Mother
admitted that she could not safely provide for Child without the proper
medical training, and that “it’s going to take time” before she is able to care
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5
Foster Father stated that he has never spoken with Mother, and that
Mother has not sent anything to Child since she has been in his care. N.T.,
10/8/2014 (Part 1), at 62, 65-66.
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for Child. Id. at 77. Mother predicted that she would be able to care for
Child as soon as she acquires “a job and a house.” Id. at 73. Mother hoped
that this would take “no more than three months.” Id. at 78.
Thus, the testimonial evidence demonstrates that Mother refused or
failed to perform parental duties for a period of at least six months prior to
the filing of the petition to terminate her parental rights on May 29, 2014.
Mother’s last documented visit with Child took place on December 8, 2013,
during the beginning of the relevant six-month period. Since that time, it
appears that Mother has made no effort to maintain contact with Child or a
place of importance in Child’s life. Moreover, Mother has never completed
the necessary medical training that she would need to care for Child.
Mother’s actions demonstrate a “merely passive interest” in Child, at best.
B.,N.M., 856 A.2d at 855. As such, Mother’s conduct warrants termination
pursuant to Section 2511(a)(1).
Having determined that the orphans’ court properly terminated
Mother’s parental rights pursuant to Section 2511(a)(1), we now review the
order pursuant to Section 2511(b). The orphans’ court found as follows:
Here, the [c]ourt examined the existence and quality of
the bond between [] Mother and . . . Child. As the [c]ourt stated
in its order of October 15, 2014:
The [c]ourt has examined whether there is an
emotional bond between the parent and the child
and if severing that bond would negatively affect the
child’s developmental, physical and emotional needs.
The [c]ourt finds that the mother has had no visits
with her child since December of 2013. The child
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was placed in an approved foster care home on May
3, 2013, . . . . From that time until December 8,
2013, the mother visited her child ten (10) times.
There have been no visits by the mother with her
child in ten (10) months. Based on the forgoing,
there is no evidence presented of any emotional
bond between the parent and the child. The [c]ourt
therefore finds that there is no emotional bond
between the parent and child.
There was no evidence of any bond presented, and in the
absence of such evidence, the [c]ourt reasonably inferred that
no such bond exists between [] Mother and [] Child. Further,
. . . Child has established a firm bond with her foster family, a
family with whom she has lived since January of 2014 and that is
willing to provide permanency for . . . Child. The pairing of . . .
Child with this foster family is particularly fortuitous when one
recalls that these foster parents have attended medical trainings
specific to the medical issues experienced on a daily basis by . . .
Child (to say nothing of their independent medical training as
EMTs) and have been steadfast in their attentiveness and
responsiveness to all of her medical needs since her arrival in
their home. The best interests of . . . Child would be served by
termination of [] Mother’s parental rights.
Orphans’ Court Opinion, at 9-10 (citation to the record omitted). Again, the
testimonial evidence supports the court’s findings.
Ms. Maturani testified that Child has resided with her current foster
family since January 17, 2014. N.T., 10/8/2014 (Part I), at 58. Child’s
foster parents are “very active” in Child’s treatment. Id. Ms. Maturani
stated that Child views her foster parents as her parents, due to her lack of
contact with Mother and Father, and looks to them for comfort. Id. at 59.
Foster Father testified that he is a certified paramedic. Id. at 62.
Foster Father stated that Child is generally unable to make it through the
night without medical attention, and requires care 24 hours per day. Id. at
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68-69. Foster Father explained that Child does not have kidneys and
receives nightly dialysis. Id. at 63. Child also has a feeding tube and
receives injections of Procrit. Id. Child suffers from chronic vomiting, sleep
apnea, and anemia issues, and has experienced an episode of congestive
heart failure. Id. at 63-64. Foster Father noted that Child is only
comfortable around him and her foster mother, and that Child “does not deal
well with going with other people,” including nurses. Id. at 67.
Based upon this evidence, we discern no abuse of discretion by the
orphans’ court in terminating Mother’s parental rights pursuant to Section
2511(b). It was reasonable for the court to infer that there is no bond
between Mother and Child, given Child’s age and Mother’s lack of recent
visits. In re Adoption of J.M., 991 A.2d at 324. In addition, Child’s
extensive medical needs are being met in her current foster placement.
Where, as here, the petitioner is an agency it is not necessary that an
adoption is presently contemplated nor that a person with a present
intention to adopt exists. 23 Pa.C.S. § 2512(b).
Accordingly, we affirm the decree involuntarily terminating Mother’s
parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1) and (b).
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
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