In the Int. of: T.C.R., Appeal of: B.B.R. ( 2022 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: B.B.R., MOTHER :
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: No. 1511 MDA 2021
Appeal from the Order Entered October 27, 2021,
in the Court of Common Pleas of Cumberland County,
Juvenile Division at No(s): CP-21-DP-0000034-2017.
IN RE: ADOPTION OF: T.C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: B.B.R., MOTHER :
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: No. 1514 MDA 2021
Appeal from the Decree Entered October 21, 2021,
in the Court of Common Pleas of Cumberland County,
Orphans' Court at No(s): 018-ADOPT-2021.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JUNE 13, 2022
In this consolidated matter, B.B.R. (Mother) appeals various aspects of
the orphans’ court decision to involuntary terminate her parental rights to her
four-year-old son, T.C.R. (the Child), pursuant to the Adoption Act. See 23
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Pa.C.S.A. § 2511(a)(2), (5), and (b).1 Mother also appeals the decision to
change the goal of the dependency proceedings from reunification to adoption,
pursuant to the Juvenile Act. See 42 Pa.C.S.A. § 6351(f). After careful review,
we affirm.
The record discloses the following procedural and factual history: The
Agency’s involvement with the family began in 2016 after a report that Mother
was in the emergency room, heavily intoxicated, and 16 weeks pregnant with
the Child. The Child tested positive for alcohol at birth in February 2017 and
was removed from Mother’s care in March 2017.
Between 2017 and 2020, the Child was placed with the foster family on
three separate occasions due to Mother’s alcohol abuse, her mental health,
and the possibility of domestic violence in the home. Specifically, the Child
was placed from March 2017 until July 2017 (approximately 5 months);
November 2017 until February 2018 (approximately 4 months); March 2018
until March 2019 (approximately 12 months). By August 2019, Mother
progressed to where the juvenile court terminated the Child’s dependency.
Although the dependency case was closed, the Child’s foster family
remained in contact with the family. The foster mother cared for the Child
overnight at least once per week, and sometimes for longer stints during
Mother’s relapses. Between the dependency closure in August 2019 until June
2020, Father informed the foster mother that Mother had relapsed three
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1The orphans’ court also terminated the rights of K.R. (Father), who did not
appeal.
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times. On two occasions, Father informed the foster mother they could not
care for the Child, because Mother was having a mental health crisis. In June
2020, Father texted the foster mother to say he was “done” and that “God
didn’t mean for him to be a father.” See N.T. (10/7/21) at 83-84. The Agency
intervened and imposed a safety plan where Mother received in-patient
therapy for three weeks.
In October 2020, Father pleaded guilty to a series of offenses, including
indecent assault of a person less than 16 years of age, all related to contact
with his daughter from a previous marriage. His probation conditions did not
allow him to have contact with minors, including the Child, or with the foster
parents.
The final removal occurred in November 2020 when Mother relapsed
and was arrested for assaulting Father. Around this time, Mother drank two
bottles of vodka, passed out, and was taken to the hospital where she had to
give birth via Caesarean section due to her excessive consumption of alcohol.
The newborn sibling was diagnosed with fetal alcohol syndrome. Mother
entered a residential treatment facility. The Child was adjudicated dependent
in December 2020, and he was placed with the same foster family that cared
for him during his previous placements. The foster family intends to adopt
the Child. The Child’s younger sibling was also placed with the foster family.
The juvenile court imposed a series of family service plan goals to
facilitate Mother’s reunification with the Child. The goals included: parenting;
drug and alcohol treatment; mental health treatment; housing; and
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cooperation with the Agency. In its Rule 1925(a) opinion, the court outlined
Mother’s substantial compliance with these goals. See Trial Court Opinion
(T.C.O.), 12/20/21 at 6-8.
The Agency petitioned for a goal change hearing in March 2021 and for
the involuntary termination of Mother’s rights in August 2021. The orphans’
court held a remote hearing on October 7, 2021, in accordance with the Covid-
19 protocols. The court appointed the Child legal counsel, pursuant to Section
2313(a) of the Adoption Act. The Child’s counsel represented that the Child
was too young to state his preferred outcome. The court also appointed the
a guardian ad litem (GAL) to represent the Child’s best interests. The GAL
was new to the case, having only taken over in August 2021 (i.e.,
approximately four months prior to the termination hearing). The GAL
represented that termination was in the Child’s best interests.
The orphans’ court subsequently granted the Agency’s petitions under
23 Pa.C.S.A. § 2511(a)(2), (5) and (b). Mother appealed both the termination
decree and the goal change order. She presents the following seven issues,
which we have re-ordered for ease of disposition:
1. [Did] the trial court abuse[] its discretion and
commit[] an error of law by accepting the opinion of
the guardian ad litem (GAL), the opinion of the Child’s
court-appointed attorney, and the opinion of a
representative from [the Agency] supporting
termination of Mother’s parental rights under
circumstances where none of these witnesses ever
witnessed Mother’s relationship with T.C.R., had never
been in Mother’s home, and, with respect to the
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attorney and the GAL had never even met Mother
before expressing their opinion at trial?
2. Did the trial court commit an error of law and abuse
its discretion by considering any statements or actions
of T.C.R. that occurred when T.C.R. was solely in the
foster/adoptive Mother’s presence?
3. Did the trial court commit an error of law and an abuse
of discretion by giving little or no weight to mother’s
witnesses under circumstances where the court
directed that their testimony be expedited?
4. Was there insufficient evidentiary support for the trial
court’s orders terminating Mother’s parental rights
and changing the permanency placement goal to
adoption, thus causing an abuse of discretion?
5. Did the trial court commit an error of law and an abuse
of discretion in failing to take into consideration and
provide sufficient weight to Mother’s current
circumstances in addressing her mental health and
addiction illnesses?
6. Did the trial court commit an error of law and an abuse
of discretion by accepting the opinions of principal
witnesses as to the psychological and emotional
impact of the termination of parental rights upon
T.C.R., without directing the intervention of a
professional or expert to provide testimony in this
regard?
7. Did the trial court commit an error of law and an abuse
of discretion in failing to require sufficient evidence
regarding the emotional and psychological bond
between T.C.R. and his brother and his half-brother?
Mother’s Brief at 15-17 (re-ordered).2
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2 Mother initially raised 20 issues in her concise statement of errors
complained of on appeal. We caution Mother’s counsel that a concise
statement, which is too vague or voluminous could lead to waiver. See, e.g.,
(Footnote Continued Next Page)
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We begin with 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).
In her first appellate issue, Mother argues the orphans’ court erred when
it accepted the opinions of: 1) the Agency’s primary witness; 2) the Child’s
court-appointed attorney; and 3) the Child’s GAL. Mother reasons these
“opinions” should be discounted because none of these individuals witnessed
Mother’s interaction with the Child. See generally Mother’s Brief at 33-37.3
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Commonwealth v. Vurimindi, 200 A.3d 1031 (Pa. Super. 2018). Waiver is
not appropriate in this instance, because the orphans’ court thoroughly
addressed each of Mother’s appellate issues, and our review was not impeded.
But see Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002)
(“Even if the trial court correctly guesses the issues [an] appellant raises on
appeal and writes an opinion pursuant to that supposition the issues [may] be
waived.”).
3We note Mother’s use of the term “opinions” to describe the testimony of the
Agency witness, and to describe the legal positions of the Child’s counsel and
GAL. On this issue, and at various times throughout her brief, Mother
seemingly conflates the sufficiency of the evidence with the weight of the
(Footnote Continued Next Page)
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We begin with the testimony of the Agency’s witness. At the time of the
termination hearing, the caseworker assigned to Mother’s case had left her
employment with the Agency. Because the caseworker was unavailable to
testify, the Agency called the case supervisor who had been the supervisor
attached to the case. The supervisor was able to testify about the Mother’s
goals and the case history. Mother argues the court erred when accepting
this testimony, because the supervisor had no personal knowledge of the case.
In its Rule 1925(a) opinion, the court noted: “To the extent that
[Mother] had specific objections to a witness’s lack of personal knowledge
about particular subjects, we heard those objections and ruled on those
objections [in favor of Mother].” See T.C.O. at 19. Indeed, the court cites
two specific examples where Mother’s objections were sustained. Id. at 19,
n.79. Mother, by contrast, cites no examples of evidentiary rulings where she
was prejudiced by the case supervisor’s lack of personal knowledge.
Moreover, Mother cites no relevant legal authorities to support her claim, in
apparent circumvention of our Rules of Appellate Procedure. See Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal”); see also Pa.R.A.P. 2119(e) (“Statement of place
of raising or preservation of issues”); and see Pa.R.A.P. 2101 (“Conformance
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evidence. We clarify, as best we can, what precisely Mother means to
challenge. See, e.g., Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.
Super. 2001) (“When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.”).
Insofar as this first issue relates to the Child’s legal counsel and GAL, it is
apparent that Mother means to challenge the propriety of this representation.
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with Requirements.”). We discern no error or abuse of discretion as to this
contention. To the extent Mother argues that the court’s decision was based
on insufficient evidence or that the supervisor’s testimony should have been
afforded less weight, we address those claims in our discussion of Mother’s
fourth and fifth issues.
Mother’s claims regarding the Child’s legal counsel and the GAL
implicate 23 Pa.C.S.A. § 2313(a) (“Representation”).4 The Adoption Act
mandates that children have a statutory right to counsel in contested
involuntary termination proceedings:
The court shall appoint counsel to represent the child in an
involuntary termination proceeding when the proceeding is
being contested by one or both parents. The court may
appoint counsel or a guardian ad litem to represent any
child who has not reached the age of 18 years and is subject
to any other proceeding under this part whenever it is in the
best interests of the child. […].
23 Pa.C.S.A. § 2313(a).
This statue has been the source of considerable litigation in recent
years. In a fractured decision, our Supreme Court held in In re Adoption of
L.B.M., 161 A.3d 172, 180 (Pa. 2017), that, in a contested termination
proceeding, the orphans’ court must appoint counsel who is directed by the
child to represent the child’s “legal interests.” This rule is commonly referred
to as the Section 2313(a) mandate. A child’s legal interests are synonymous
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4
We note that whether a child has been properly afforded counsel under
Section 2313(a) is a mixed question of fact and law, which is also subject to
a review for an abuse of discretion. In re P.G.F., 247 A.3d 955, 961 n.4 (Pa.
2021).
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with the child’s “preferred outcome” of the proceeding. L.B.M., 161 A.3d at
174-75.
More recently, our Supreme Court addressed the contours of that
representation. See In re P.G.F., 247 A.3d 955 (Pa. 2021). In P.G.F. the
Court explained that any attorney acting as a child’s legal counsel must, at a
minimum, attempt to ascertain the child’s preference and advocate on the
child’s behalf. Id. at 966 (emphasis added). P.G.F. involved a mother and a
step-father seeking to terminate the rights of the biological father. The child’s
attorney investigated the child’s preferred outcome, but the attorney decided
not to inform the child of the exact meaning of the termination proceedings,
because doing so would reveal to the child that his step-father was not his
actual biological-father. The attorney believed that pressing the child about
his preferred outcome would cause confusion, anxiety, and emotional trauma.
Id. at 968.
The Supreme Court determined that the child’s attorney fulfilled the
Section 2313(a) mandate when she attempted to – but could not – elicit the
child’s preferred outcome. The Court observed that discerning a child’s
preference is necessarily a fact-intensive and nuanced process, based upon
an attorney’s observations and interactions with the child. Id. at 966. The
Court reasoned that children fall within a wide range of ages, maturity levels,
and emotional capacities that all factor into a child’s ability to express a
preference. Id. The Court held the orphans’ court should afford “significant
deference” to counsel’s approach in discerning a child’s preference. In turn,
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the appellate court should give “substantial deference” to the orphans’ court
determination of whether the attorney fulfilled the Section 2313(a) mandate.
Id. at 967.
Returning to the instant matter, the Child’s legal counsel represented to
the court that he was unable to ascertain the Child’s position on termination,
because the four-year-old Child was too young. See N.T. at 183-184. Counsel
explained that the Child felt comfortable with the foster family and looked to
them for support when in a strange environment. Id. at 184. Counsel also
noted that the Child was “picking up on” the fact that Mother also turned to
the foster family for support. Id. The Child refers to Mother and his foster
mother as “mommy [B.]” and “mommy [J.],” respectively. Id. at 183.
Counsel averred that the Child would say things like “I want to live here
forever” wherever he happened to be having a particularly good time, e.g.,
when he was at the beach. Id. at 183-84. Counsel concluded his report to
the court by stating: “But with respect to his preference, I don’t believe he
can give a preference as to where he would like to be, so I defer to the [GAL]
with the recommendation.” Id. at 184.
On appeal, Mother evidently agrees with the legal counsel’s assessment
that the Child was too young to articulate a preferred outcome. According to
Mother, the error occurred when the legal counsel subsequently proceeded to
express a position. Mother argues that counsel’s position was improper,
because counsel had never met Mother. See Mother’s Brief at 35. Mother
concludes the court erred for accepting this position.
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In its Rule 1925(a) opinion, the orphans’ court noted that the legal
counsel’s report did not take a position in favor or disfavor of termination. See
T.C.O. at 15-16. The court understood counsel’s report to mean that the Child
was unable to give a preference, that the Child was quick to tell whomever he
was with that he was happy there. Id.
We agree with the assessment of the orphans’ court. Contrary to
Mother’s characterization, counsel took no position regarding whether
Mother’s rights should be terminated. Counsel merely articulated, for the
court’s benefit, his approach in attempting to discern the Child’s preferred
outcome. Moreover, we are not convinced by Mother’s argument that counsel
had to meet with Mother. The legal counsel’s representation is directed by
the Child, based on the Child’s preference. L.B.M., 161 A.3d at 180. As we
noted above, the orphans’ court should give significant deference to counsel’s
approach. P.G.F., 247 A.3d. at 966-67. We, in turn, must give “substantial
deference” to the orphans’ court determination. Mother’s claim regarding the
propriety of counsel’s representation is without merit.
Next, we turn to the final aspect of Mother’s first appellate issue, namely
that the orphans’ court erred by accepting the GAL’s recommendation. See
Mother’s Brief at 35-37. Mother argues the court should not have relied on
the GAL’s recommendation, because the GAL failed to interview Mother in
apparent circumvention of the Rules of Juvenile Court Procedure and the
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Juvenile Act.5 Mother concludes that the GAL’s failure to perform the required
investigation was an error of law. Id. at 37.
Mother’s claim presents a novel question. The issue is not whether the
GAL satisfied her duty as legal counsel under Section 2313(a). See, e.g., In
re T.S., 192 A.3d 1080, 1090 (Pa. 2018) (holding that a GAL may fulfill the
Section 2313(a) mandate so long as the child’s best interests do not conflict
with the child’s legal interests). Here, the Child was appointed separate legal
counsel, who fulfilled the mandate when he attempted to ascertain the child’s
preferred outcome. The question now is what obligation, if any, does a GAL
have when that GAL is appointed solely to represent the Child’s best interests
during a contested termination hearing.
On one hand, it appears that a GAL’s participation in a termination
proceeding in not required. See L.B.M., 161 A.3d at 181;6 see also In re:
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5
Rule 1154(5) provides, inter alia, that a GAL “shall: (5) Interview potential
witnesses, including the child's guardians, caretakers, and foster parents,
examine and cross-examine witnesses, and present witnesses and evidence
necessary to protect the best interests of the child.” Pa.R.J.C.P. 1154(5)
(emphasis added). The Juvenile Act outlines substantially the same
responsibilities as those listed in the Juvenile Rules of Procedure, with a
notable difference. The Juvenile Act explicitly provides that the GAL shall:
“(5) Interview potential witnesses, including the child’s parents,
caretakers, and foster parents…” 42 Pa.C.S.A. § 6311(b)(5) (emphasis).
6 In L.B.M.’s fractured decision, only a three-justice plurality joined Part II(B)
of the decision. Part II(B) notes, in passing, that “the Adoption Act does not
require the appointment of a GAL[.]” L.B.M., 161 A.3d at 181. Chief Justice
Saylor and Justice Todd did not join Part II(B), but only to opine that they
believed that a GAL could represent a child’s legal interests, so long as the
child’s legal interests and best interests do not conflict. Id. at 183-1184 (Chief
Justice Saylor – Concurring) (emphasis added).
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Adoption of C.J.A., 204 A.3d 496, 501-02 (Pa. Super. 2019).7 On the other
hand, once a GAL has been appointed to represent a child’s best interests
during a termination proceeding, it might follow that the GAL would be
charged with the same obligations as they would during a dependency
proceeding (including the obligation to interview the parent). See T.S., 192
A.3d at 1089-90.8 Then again, if the GAL has statutory obligations, it stands
to reason that the courts might have to afford the GAL the same sort of the
deference afforded to legal counsel, when determining whether those
obligations have been fulfilled. See P.G.F., 247 A.3d at 967.
This precise question appears to be a matter of first impression, but this
panel cannot be the one to answer it. We do not reach this issue, because
Mother failed to raise it with the orphans’ court. See Pa.R.A.P. 302(a). The
only mention of the GAL not fulfilling her obligations was during Mother’s direct
examination, when she testified that the GAL was not at a family service plan
meeting. See N.T., at 134. To that end, we note that the GAL averred she
“reviewed all the records” and “had extensive conversations with quite a large
number of people about this case.” Id. at 191. But Mother did not object
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7In C.J.A., the orphan’s court did not appoint a GAL at all; rather, the court
only appointed legal counsel under Section 2313(a).
8 In T.S., the Supreme Court consulted the Juvenile Act – specifically, 42
Pa.C.S.A. § 6311(b)– to understand the contours of a GAL’s obligation in a
termination proceeding, where the Adoption Act provided no clear answer.
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before or after the GAL’s recommendation, or otherwise raise the propriety of
the GAL’s representation at the termination proceeding.9
In her second appellate issue, Mother argues the orphans’ court erred
when it considered the statements the Child made to the court during an in
camera interview. Mother claims these statements should be discounted,
because they were made in the presence of the foster mother. See Mother’s
Brief at 39.
At the termination proceeding, the parties agreed that the court should
speak with the Child, particularly because the legal counsel averred that he
could not ascertain the Child’s preferred outcome. See N.T. at 180, 182-83.
The parties agreed that the court should speak to the Child alone, without the
intimidating presence of five attorneys. The plan was that foster mother would
initially be present during the interview (conducted via Zoom) and then leave
once the Child felt comfortable. But the Child was too shy to engage with the
court, so the foster mother never left. During the short interview, the court
gently coaxed some answers from the Child, who stated that he had “two
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9 We note that our Supreme Court authorized sua sponte review of certain
issues regarding Section 2313(a) representation; i.e., courts may “evaluate
(1) whether the orphans’ court appointed counsel to represent the legal
interests of the children and (2) if the appointed counsel also serves as GAL,
whether the orphans’ court determined that the child’s best interests and legal
interests did not conflict.” In re Adoption of K.M.G., 240 A.3d 1218, 1236
(Pa. 2020). We refrain from expanding this holding to mean that we may
conduct a sua sponte review to determine the adequacy of the GAL’s best
interests representation; such an inquiry would not be a “binary” question,
but a “fact-intensive, nuanced determination…not well-suited for sua sponte
appellate review.” K.M.G. 240 A.3d at 1238.
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mommies” and that he liked the foster mother best. However, the court
terminated the interview after concluding that the Child was not competent to
testify. See T.C.O. at 16-17; see also N.T. at 185-190. Thus, contrary to
Mother’s argument on appeal, the court did not consider the Child’s
statements at all, much less weigh them against Mother. Mother’s second
issue is without merit.
In her third appellate issue, Mother argues the orphans’ court erred by
giving little or no weight to Mother’s witnesses, where the court directed that
their testimony be expedited. See Mother’s Brief at 43.
At the mid-point of the termination proceeding, the orphans’ court
informed the parties that it had other proceedings scheduled for that
afternoon, albeit short ones. The court asked whether the parties wished to
proceed through the lunch hour and attempt to finish the hearing that day, or
whether the parties wished for a continuance until the following Thursday.
See N.T. at 91. Counsel for the Agency was unavailable during the next week,
so the hearing proceeded without objection, and the court took short recesses
to tend to its other matters. Ultimately, Mother was able to call her each of
desired witnesses and presented her case in full. At no point did Mother object
to the court’s procedure.
On appeal, Mother provides a singular citation to the record to argue the
court erred. See Mother’s Brief at 43; see also N.T. at 111. Mother’s counsel
sought to elicit testimony from Mother’s AA sponsor about the sponsor’s
experience with alcoholism. The court directed counsel to move on, not
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because of time constraints, but because the court was familiar with
alcoholism and found the testimony to be irrelevant to Mother’s case. We
conclude Mother’s third claim is meritless. Insofar as Mother means to present
this issue as a weight claim, we address that matter below.
We turn now to the portion of Mother’s appeal involving the substantive
termination decision. Termination of parental rights is governed by Section
2511 of the Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in section 2511(a). Only
if the court determines that the parent's conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to section
2511(b): determination of the needs and welfare of the
child[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Clear and convincing evidence is evidence that 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 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of
Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). We add that we
may uphold a termination decision if any proper basis exists for the result
reached. In re C.S., 761 A.2d at 1201. Importantly, we need only agree with
the trial 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).
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We address the orphans’ court determinations under Section
2511(a)(2). That section provides:
(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.
23 Pa.C.S.A. § 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be
remedied.” C.M.K., 203 A.3d at 262 (citation omitted).
Mother’s fourth and fifth appellate issues both concern the third element
of the Section 2511(a)(2) analysis. Mother cites to her most recent stint of
sobriety to argue that the Agency failed to demonstrate that she was unable
to remedy the conditions which led to the Child’s removal. See Mother’s Brief
at 32, 45-46. Mother claims that she has been sober for 14 months and had
consistently met her service plan goals. However, that number, though
laudable, is misrepresentative because it includes time spent in an in-patient
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treatment program, as well as the four months between the termination
decision and the filing of the appellate brief. In October 2021, when the
orphans’ court held the termination proceeding, Mother had only been out of
in-patient care and sober for approximately six months.
This important discrepancy goes to the heart of the court’s decision:
[T]his recent period of sobriety follows a long and tortured
history of [Mother’s] relapses when the Agency is not closely
monitoring [Mother’s] progress. Just prior to this period of
sobriety, [Mother] had several serious relapses with
accompanying domestic violence instigated by [Mother] in
the presence of [Child], prompting [the] removal of the
Child, calls on the foster parents to care for the Child under
the Agency’s radar, police intervention, passing out from
intoxication in the whole while caring for the [Child], trips to
the emergency room heavily intoxicated, scheduled delivery
due to heavy intoxication, or, finally, a four-month period of
in-patient treatment. As a result of this instability, the Child
was removed from [Mother’s] care formally four times and
spent over 30 out of the 55 months of his life in the Agency’s
custody, placed with his foster parents. Adding in the days
that [Father] informally called on the foster parents to
retrieve the Child while he dealt with [Mother’s] intoxication
in the home, approximately another month may be added.
If not for the presence of the [Father] to remove the Child
from [Mother’s] care himself, [the orphans’ court] cannot
speculate what might have occurred. At this time, however,
[Father] is not permitted to have contact with the Child or
communicate with the foster family pursuant to his
probation conditions, and [the court] has since terminated
his parental rights.
[The court does] not doubt that [Mother] loves the Child,
and we are confident in the accuracy of the testimony [the
court] heard from her and those who testified on her behalf
that [Mother] is affectionate and loving at her visits with the
Child and that she is currently engaged in her sobriety
efforts. [Mother’s] history of extreme relapses and
unconsciousness while caring for the Child full-time and the
recentness of her return home from four months of in-
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patient treatment just this year, however, do not instill
confidence that [Mother] can remedy the conditions leading
to her incapacity to parent the Child, least of all without the
help of an in-home partner to supervise full-time care or the
continued intervention of the foster parents. […] Even with
[Father] in the home, he had previously expressed that he
felt he could not protect the Child from [Mother].
We are sympathetic to [Mother’s] history of alcohol
addiction and commend her for her current sobriety.
[Mother’s] pattern of relapses while caring for the Child
under the stress of full-time parenting, the extreme nature
of the previous circumstances prompting the Child’s removal
from the home, and the need for [Mother] to have the safety
net and monitoring of other adults to remove the Child when
necessary lead [the court] to find that the Agency has met
its burden in proving Section 2511(a)(2). In short, [Mother]
gets sober, meets her goals for a period of time, relapses
terribly, and repeats. Indeed, we have witnessed [the]
same during our review of the case. [The court] gave the
Child back and terminated dependency despite previous
relapses in the hopes stability had been found. It has not,
and the Child at long last deserves better stability.
T.C.O. at 12-13 (citation to legal authority omitted).
Throughout her brief, Mother argues that the orphans’ court did not
place fair weight on the testimony and evidence favorable to Mother’s case.
But we emphasize that with termination cases, the record often supports the
opposite result. See T.S.M., 71 A.3d at 267; see also, e.g., In re Adoption
of T.B.B., 835 A.2d 397, 394 (Pa. Super. 2003). Recently, our Supreme Court
reaffirmed that the Superior Court is not in a position to make “close calls”
when reviewing appeals from termination decisions. “When a trial court
makes a ‘close call’ in a fact-intensive case involving…the termination of
parental rights, the appellate court should review the record for an abuse of
discretion and for whether the evidence supports that trial court’s conclusions;
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the appellate court should not search the record for contrary conclusions or
substitute its judgment for that of the trial court.” Interest of S.K.L.R., 256
A.3d 1108, 1124 (Pa. 2021). To that end, we observe that the orphans’ 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. & J.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation
omitted).
Instantly, the record supports the orphans’ court decision that Mother
cannot remedy the causes that lead to the Child’s removal. We are particularly
persuaded by the fact that the court had previously returned the Child to
Mother’s care and closed the dependency case after Mother demonstrated a
period of sobriety. But without Agency supports in place, Mother relapsed and
the Child had to be removed for a fourth time. Mother attributed that relapse
to the stresses of her pregnancy with the Child’s younger brother. She claims
that the situation will be different now, because she underwent surgery to
have her tubes tied, and because she has since received mental health
treatment. See Mother’s Brief at 20. However, the orphans’ court was free to
discount this testimony as evidence that Mother will not relapse again.
Mother’s fourth and fifth appellate issues are without merit.
Finally, we turn to the second portion of the bifurcated termination
analysis under Section 2511(b):
(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
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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)(b).
This Court has explained that:
[S]ection 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 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,
946 A.2d at 764 (holding there was no bond worth preserving where the child
had been in foster care for most of the child’s life, which caused the resulting
bond to be too attenuated). Moreover, the court is not required to use expert
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testimony to resolve the bond analysis. In re Z.P., 994 A.2d at 1121 (citing
In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008)). And a parent’s own
feeling of love and affection for the child does not preclude the termination.
Id. Finally, we emphasize that “[w]hile a parent’s emotional bond with her
and/or her child is a major aspect of the Section 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) (citation omitted).
In her sixth appellate issue, Mother alleges the orphans’ court erred
when it relied on the testimony of lay witnesses, including the foster mother,
to resolve the question of whether termination would be appropriate under 23
Pa.C.S.A.§ 2511(b). See Mother’s Brief at 40. Mother reasons that the court
“had an obligation to secure an expert opinion before entering its order
terminating Mother’s parental rights or, in the alternative, should have denied
the petition.” Id. at 41.
For support, Mother relies on our Supreme Court’s decision in In re
E.M., 620 A.2d 481 (Pa. 1993). In that case, the local agency called an expert
witness – a psychologist – to testify about the bond between the foster mother
and the children. Critically, the psychologist did not assess the bond between
the children and their mother. E.M., 620 A.2d at 484-85. The High Court
remanded to allow for further exploration about the parental bond. Essential
to that holding, however, was the fact that the court did not analyze the bond
between the mother and the children or the effect that severance of that bond
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would have on the children. See E.M., 620 A.2d at 485 (emphasis added).
Thus, Mother’s reliance is misplaced. The court is not required to use expert
testimony when conducting a bond analysis. Z.P., 994 A.2d at 1121. Section
2511(b) does not require a formal bonding evaluation. Id. (emphasis added).
Here, the orphans’ court properly recognized its obligation to consider
the effects that termination would have on the parental bond. See T.C.O. at
13-14. The court acknowledged that the Child loves Mother, but found that
the Child’s confusion and uncertainty were indicators of his greater need for
permanency and stability. Id. at 14. The court also noted that the Child was
bonded to his foster family, with whom the Child spent most of his short life.
The court was right to make this observation. “Common sense dictates that
courts considering termination must also consider whether the children are in
a pre-adoptive home and whether they have a bond with their foster parents.
T.S.M., 71 A.3d at 267-68. And we reiterate that the bond is only one aspect
– albeit a major aspect – of the Section 2511(b) analysis. In re N.A.M.,
supra. We discern no error.
In her seventh and last appellate issue, Mother alleges the orphans’
court erred when it did not consider the bond between the Child and his
siblings. See Mother’s Brief at 37-38.10 The Child’s older brother resides with
Mother, and the Child’s infant younger brother is placed with the foster family.
The trial court recognized the close relationship that Child has with both
____________________________________________
10We note that Mother provides no citation to the record, nor to relevant legal
authorities, on this point – an apparent contravention of our Rules of Appellate
Procedure. See generally Pa.R.A.P. 2119(e); see also Pa.R.A.P. 2101.
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siblings, but ultimately determined that the Child’s relationship with his older
brother did not preclude the termination of Mother’s rights. See T.C.O. at 22.
We are mindful that, when possible, the preservation of the family is the
desired outcome. However, “[t]he goal of preserving the family unit cannot
be elevated above all other factors when considering the best interests of the
child[], but must be weighed in conjunction with other factors.” In re K.D.,
144 A.3d 145, 153 (Pa. Super. 2016) (citation omitted). Instantly, the court
properly considered the effect termination might have on the sibling
relationship and weighed the same in conjunction with the rest of the
termination analysis. We discern no error, nor abuse of discretion.
As a final matter, we note that Mother has all but abandoned her
challenge to the court’s goal change decision. But even if we concluded that
Mother preserved this claim, it would be moot given our decision to affirm the
termination. See Interest of D.R.-W., 227 A.3d 905, 917 (Pa. Super. 2020)
(“An issue before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.”) (citation omitted).
In sum, we discern no error or abuse of discretion when the orphans’
court granted the Agency’s petition to terminate Mother’s rights under Section
2511(a)(2) and (b). The Child’s legal counsel fulfilled the Section 2313(a)
mandate. Mother failed to preserve her claim as to the propriety of the GAL’s
representation. The orphans’ court procedure was proper. Mother abandoned
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her challenge to the court’s goal change decision; alternatively, the challenge
is moot.11
Decree affirmed. Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/13/2022
____________________________________________
11
We echo the court’s hope that Mother continues on her path to sobriety, and
we applaud the foster family’s intention to allow Mother to have contact with
the Child, as the foster family deems appropriate.
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