In Re: Adoption of C.D.R., Appeal of: R.R.

J-S05045-15

2015 PA Super 54

IN RE: ADOPTION OF: C.D.R. IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: R.R., NATURAL MOTHER No. 1692 WDA 2014

Appeal from the Order entered September 19, 2014,

in the Court of Common Pleas of Cambria County, Orphans’

Division, at No: 2014-0111 IVT

BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

OPINION BY STABILE, J.: FILED MARCH 17, 2015

R.R. (Mother) appeals from the order entered September 19, 2014, in

the Court of Common Pleas of Cambria County, involuntarily terminating her

parental rights to her minor son, C.D.R. (Child), born in July of 2009. We

affirm.1

On April 18, 2012, Mother was incarcerated as a result of a probation

violation. Cambria County Children and Youth Service (CYS) filed a

dependency petition on June 1, 2012, and Child was adjudicated dependent

by order dated June 6, 2012. Physical custody of Child was granted to

Child’s maternal aunt during Mother’s incarceration. Mother was released on

July 26, 2012, and Child was returned to her care. However, Mother was

1

The identity of Child’s father (Father) is unknown. It does not appear from

the record that a petition to terminate Father’s parental rights was filed or

that Father’s rights were terminated by a previous court order. We note

that, generally, a minor may not be adopted unless both of his or her natural

parents consent, thereby relinquishing their parental rights. 23 Pa.C.S.A.

§ 2711(a)(3). A natural parent’s consent is unnecessary where that

parent’s rights previously have been terminated, or where the court, after

notice and a hearing, determines that grounds exist for involuntary

termination. 23 Pa.C.S.A. § 2714.

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again incarcerated for a probation violation on or about October 10, 2012,

and Child was placed in foster care. Child has not resided with Mother since

that time.

Mother was released on October 18, 2012, but was re-incarcerated

from November 28, 2012, until March 30, 2013, because of a drug

paraphernalia charge. Mother was once again incarcerated for failing to

appear at a probation hearing on October 7, 2013, and remained

incarcerated until December 12, 2013. Mother gave birth to a daughter,

Child’s younger sister, shortly after her release. Finally, Mother was

incarcerated for two days starting on December 21, 2013, as a result of a

retail theft charge. By order dated January 10, 2014, Child’s permanency

goal was changed from reunification to adoption, and CYS ended

reunification services.2

On February 3, 2014, CYS filed a petition to involuntarily terminate

Mother’s parental rights to Child. A hearing was held on August 13, 2014,

during which the orphans’ court heard the testimony of CYS caseworker,

Barbara Brzana; CYS social worker, Gina Saly; and Mother. On September

19, 2014, the court entered its order terminating Mother’s parental rights.

Mother timely filed a notice of appeal on October 8, 2014, along with a

2

The record is inconsistent as to the exact dates of Mother’s many

incarcerations. For the purposes of this summary, we rely on the dates

listed in Mother’s family service plan documentation, which was entered into

evidence at the termination hearing as Petitioner’s Exhibit 3.

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concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

Mother now raises the following issue for our review: “Whether the

[orphans’ c]ourt either abused its discretion or committed an error of law

when it granted the Petition for Involuntary Termination of Parental Rights,

thereby terminating the parental rights of [Mother] relative to [Child?]”

Mother’s Brief at 2.

We consider Mother’s claim mindful of our well-settled standard of

review.

The standard of review in termination of parental rights cases

requires appellate courts to accept the findings of fact and

credibility determinations of the trial court if they are supported

by the record. If the factual findings are supported, appellate

courts review to determine if the trial court made an error of law

or abused its discretion. A decision may be reversed for an

abuse of discretion only upon demonstration of manifest

unreasonableness, partiality, prejudice, bias, or ill-will. The trial

court’s decision, however, should not be reversed merely

because the record would support a different result. We have

previously emphasized our deference to trial courts that often

have first-hand observations of the parties spanning multiple

hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis.

Initially, the focus is on the conduct of the parent. The party

seeking termination must prove by clear and convincing

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evidence that the parent’s conduct satisfies the statutory

grounds for termination delineated in Section 2511(a). Only if

the court determines that the parent’s conduct warrants

termination of his or her parental rights does the court engage in

the second part of the analysis pursuant to Section 2511(b):

determination of the needs and welfare of the child under the

standard of best interests of the child. One major aspect of the

needs and welfare analysis concerns the nature and status of the

emotional bond between parent and child, with close attention

paid to the effect on the child of permanently severing any such

bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

In this case, the orphans’ court terminated Mother’s parental rights

pursuant to Section 2511(a)(1), (2), (5), (8) and (b). We need only agree

with the orphans’ court as to any one subsection of Section 2511(a), as well

as Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).

Here, we analyze the court’s decision to terminate under Section 2511(a)(2)

and (b), which provide as follows.

(a) General Rule.—The rights of a parent in regard to a

child may be terminated after a petition filed on any of the

following grounds:

* * *

(2) The repeated and continued incapacity, abuse,

neglect or refusal of the parent has caused the child to

be without essential parental care, control or

subsistence necessary for his physical or mental well-

being and the conditions and causes of the incapacity,

abuse, neglect or refusal cannot or will not be remedied

by the parent.

* * *

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(b) Other considerations.—The court in terminating the

rights of a parent shall give primary consideration to the

developmental, physical and emotional needs and welfare

of the child. The rights of a parent shall not be terminated

solely on the basis of environmental factors such as

inadequate housing, furnishings, income, clothing and

medical care if found to be beyond the control of the

parent. With respect to any petition filed pursuant to

subsection (a)(1), (6) or (8), the court shall not consider

any efforts by the parent to remedy the conditions

described therein which are first initiated subsequent to

the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(2), (b).

We first address whether the orphans’ court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(a)(2).

In order to terminate parental rights pursuant to 23 Pa.C.S.A.

§ 2511(a)(2), the following three elements must be met: (1)

repeated and continued incapacity, abuse, neglect or refusal; (2)

such incapacity, abuse, neglect or refusal has caused the child to

be without essential parental care, control or subsistence

necessary for his physical or mental well-being; and (3) the

causes of the incapacity, abuse, neglect or refusal cannot or will

not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). “The grounds for termination due to parental incapacity that

cannot be remedied are not limited to affirmative misconduct. To the

contrary, those grounds may include acts of refusal as well as incapacity to

perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.

2002) (citations omitted).

Instantly, in support of its order terminating Mother’s parental rights,

the orphans’ court adopted a number of factual findings from the juvenile

court’s January 10, 2014 permanency review order, which changed Child’s

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permanency goal to adoption. Orphans’ Court Opinion, 9/18/2014, at 4.

Most notably, the court adopted the findings that Mother has failed to

establish and maintain a lifestyle that would permit her to provide long-term

care for Child, and that Mother cannot remedy the causes of Child’s

placement within a reasonable time. Id. The court also emphasized that

Mother failed to comply with CYS services after she was released from

incarceration in March of 2013, and began missing appointments and visits

with Child. Id. at 5. The court concluded that, while Mother loves Child and

has made some progress toward regaining custody, she has not

demonstrated consistency, and “cannot adequately support herself, let alone

any child.” Id.

Mother argues that she has been committed to regaining custody of

Child, that she has utilized all available resources to achieve that goal, and

that she has made progress. Mother’s Brief at 4-6. Mother insists that she

has remedied her drug addiction and criminal issues, and that she has

adequate housing and a support system to assist her. Id. at 5, 7, 9-11.

Mother also argues that the orphans’ court erred by adopting the findings of

the juvenile court, rather than making its own findings. Id. at 8-9.

After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion by involuntarily terminating

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Mother’s parental rights to Child.3 CYS caseworker, Barbara Brzana,

testified that Mother has a criminal history consisting mostly of retail theft

charges. N.T., 8/13/14, at 10. Mother was on probation at the time of the

termination hearing, and Ms. Brzana explained that all of Mother’s criminal

charges had been resolved, “except for her most recent ones from May 7th,”

which were additional retail theft charges. Id. at 10, 43. Concerning

Mother’s efforts at reunification with Child, Ms. Brzana testified that Mother,

at times, appeared to be making progress. Id. at 23, 36. At one point,

after the petition to terminate Mother’s parental rights had been filed, CYS

asked that no termination hearing be scheduled in light of Mother’s

motivation and cooperation. Id. at 36. However, Ms. Brzana testified that

Mother’s progress was inconsistent, and that Mother did not complete any of

the services offered by CYS, including drug and alcohol treatment, and

psychiatric services. Id. at 15-17; Petitioner’s Exhibit 2, at 3. She offered

the following explanation:

. . . . Services have been provided and [Mother] has not been

consistently stable in one regard. Services began in March of

2012. In less than a month she was incarcerated and her

children were placed with her sister. Upon her release, within

four months her children were returned. In less than two

months she was again incarcerated and her children were again

placed. Once she was released in March of 2013, she initially

showed some cooperation with the agency and services then

3

We need not consider whether the orphans’ court erred by adopting factual

findings from the juvenile court’s permanency review order. Even if the

orphans’ court did err, there was ample evidence presented during the

termination hearing to support the court’s decision, and the court’s error

would not require reversal of the order terminating Mother’s parental rights.

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chose not to comply with drug screens. We would request her to

come in. She would show up two days later so we couldn’t get a

true random drug screen on her.

Her behaviors were inconsistent with sobriety, and [] then

after the August 21st hearing, 2013, she totally stopped having

communication with the agency and visits with her children. She

did not visit with them and was incarcerated due to again

refusing the random drug screen and also a scheduled drug

screen that our social worker was going to pick her up for on

October 3rd. So she was incarcerated on a bench warrant on

October 10, 2013, but still did not contact the agency to inquire

how her children were doing at that time. It wasn’t until myself

and the social worker went to the prison to initiate contact

between us on October 14th.

She was released on December 12th, at which time she

gave birth to [Child’s younger sister], and, again, she did inquire

and did show promise that she wanted to make change[s], but

at that point because of the length of time that [Child] ha[d]

been in care, the goal change [hearing] occurred on December

18th. Two days after that she again was incarcerated for more

retail theft charges.

In January when [Child’s younger sister] was placed with

the agency, she did say she wanted to work with the agency.

She did show some consistency for the first month, though she

did have a positive drug screen for marijuana at that time. She

did in January maintain her appointments with the agency social

worker and her visitation with the children. In February she

began missing sessions with service providers. She had

additional criminal charges in the month of February.

In March she, again, continued to miss sessions with the

service providers to the point with Alliance Medical Center that

they had to put her on a behavioral plan due to missing

appointments and because of her behavior with staff at the

facility. She tested positive for Benzos in March. In April she

continued to have inconsistency with [the Alternative Community

Resource Program] and her agency social worker. She was

under eviction from her apartment. She continued to test

positive for THC. She tried to initiate services within

Independent Family Services for home management to assist

with the eviction notice and getting her some financial stability.

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In May of 2014, she continued to miss sessions, admitted

to ongoing use of THC, failed with Independent Family Services,

and at that point her mom did step in so the eviction notice was

lifted. . . .

N.T., 8/13/14, at 28-30.

Ms. Brzana further testified that, in May of 2014, Mother revoked the

releases that allowed CYS to obtain information from Mother’s service

providers. Id. at 21. On May 28, 2014, Mother informed Ms. Brzana that

she no longer wanted to have any contact with CYS. Id. Thus, Ms. Brzana

noted that she had no information regarding Mother’s treatment after May.

Id. at 30.

Concerning visitation, Ms. Brzana testified that Mother’s visits with

Child were reduced to one per month after Child’s permanency goal was

changed to adoption. Id. at 23-24. However, Mother was given extra visits

with Child because she was demonstrating progress toward reunification

with Child’s younger sister. Id. at 23. Mother attended all of her visits from

January of 2014 until May 28, 2014. Id. at 24. Mother failed to attend all

three visits thereafter. Id. Mother claimed to Ms. Brzana that one of the

visits was missed because Mother had to work. Id. at 25. Mother reported

that she missed another visit because she thought it was on a different day.

Id. No reason was offered for missing the third visit. Id. Ms. Brzana stated

that Mother did not ask to reschedule any of the visits. Id. at 26.

CYS social worker Gina Saly testified that she began working with

Mother in June of 2013. Id. at 48. Ms. Saly was initially assigned to assist

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Mother in regaining custody of Child and Child’s older brother. Id. In

December of 2013, Ms. Saly began assisting Mother with respect to Child’s

younger sister. Id. Between June of 2013, and August of 2013, Ms. Saly

had four supervised visits with Mother, and three individual social worker

sessions. Id. at 49. In September of 2013, Ms. Saly scheduled several

sessions with Mother, and Mother failed to attend all of them. Id. at 50.

Mother was incarcerated from October 2013 until December 2013, and Ms.

Saly met with her once in prison. Id. After Mother’s release, from January

of 2014 to about March of 2014, Mother was “very committed” to meeting

with Ms. Saly. Id. at 52. However, during April and May of 2014, Mother’s

commitment “started to lack,” and Mother began to miss sessions. Id. at

51-53. Ms. Saly stopped meeting with Mother after May, because the

permanency goal of Child’s younger sister had also been changed to

adoption. Id. at 52. Ms. Saly admitted that Mother displayed “a great

understanding of parenting skills.” Id. at 55. However, Mother never

completed Ms. Saly’s parenting curriculum. Id.

Mother testified that she is unemployed, and that she is supported by

her boyfriend, with whom she now resides, and family members. Id. at 59,

75-76. Mother stated that she travels to a drug and alcohol clinic each

weekday, where she attends counseling sessions and receives methadone

treatments. Id. at 65. Mother noted that she also attends the Alternative

Community Resource Program, where she receives therapy and is prescribed

medication. Id. at 72. Mother conceded that she has a history of retail

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theft, but stated that she took “an online class . . . just last month” in order

to rehabilitate herself, and that she has not stolen anything since. Id. at 79.

Mother indicated that she is working toward resolving her criminal issues,

and that she is currently attending the Day Reporting Center. Id. at 67-69.

Mother stated that she began attending the Center two weeks prior to the

termination hearing, as a result of one of her criminal charges, and that she

is taking classes there in order to obtain her GED. Id. at 68-69. Mother

claimed that she was subject to drug screens at the Center, and that she has

not tested positive for drugs since the previous April, when she tested

positive for marijuana. Id.

Mother further testified that she had not seen Child since May of 2014.

Id. at 60. She admitted that visits with Child had been scheduled since

May, but that she did not attend the visits because she was upset that her

parental rights were being terminated, and she did not know how to say

goodbye. Id. Mother explained that her compliance with CYS began to slip

in March and April of 2014 because she became overwhelmed with

everything that she was required to do. Id. at 80, 91. Mother blamed her

feeling of being overwhelmed on her anxious and depressed mental state.

Id. Mother claimed that she no longer felt overwhelmed. Id. at 80. Mother

also stated she contacted CYS every time she missed an appointment and

attempted to reschedule. Id. at 80-81, 91. Mother testified that she

revoked her releases because she felt like CYS was “sabotaging” her efforts

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at reunification by only testifying as to the bad things she was doing and not

the good things. Id. at 92.

Our review of the record supports the orphans’ court’s conclusion that

Mother is incapable of parenting Child, and that her parental incapacity has

left Child without essential parental care or control. Additionally, it was

reasonable for the court to determine that Mother will not, or cannot,

remedy this incapacity. While the evidence presented at Mother’s

termination hearing establishes that she did make some progress toward

reunification with Child, we agree with the orphans’ court that Mother has

failed to demonstrate consistent improvement. Moreover, at the time of the

termination hearing, it appears that Mother had abandoned any attempt at

being reunified with Child, by ending her visits, revoking her releases, and

by indicating that she no longer wanted to have any contact with CYS. No

relief is due.

Next, we consider whether termination was proper under Section

2511(b). Section 2511(b) “focuses on whether termination of parental

rights would best serve the developmental, physical, and emotional needs

and welfare of the child.” In re Adoption of J.M., 991 A.2d 321, 324 (Pa.

Super. 2010). As this Court has explained, “Section 2511(b) does not

explicitly require a bonding analysis and the term ‘bond’ is not defined in the

Adoption Act. Case law, however, provides that analysis of the emotional

bond, if any, between parent and child is a factor to be considered” as part

of our analysis. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).

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“While a parent’s emotional bond with his or her child is a major aspect of

the subsection 2511(b) best-interest analysis, it is nonetheless only one of

many factors to be considered by the court when determining what is in the

best interest of the child.” In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)

(citing K.K.R.-S., 958 A.2d at 533-36).

[I]n addition to a bond examination, the trial court can equally

emphasize the safety needs of the child, and should also

consider the intangibles, such as the love, comfort, security, and

stability the child might have with the foster parent.

Additionally, this Court stated that the trial court should consider

the importance of continuity of relationships and whether any

existing parent-child bond can be severed without detrimental

effects on the child.

Id. (quoting In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010)); see also In

re T.D., 949 A.2d 910, 920-23 (Pa. Super. 2008), appeal denied, 970 A.2d

1148 (Pa. 2009) (affirming the termination of parental rights where “obvious

emotional ties exist between T.D. and Parents, but Parents are either

unwilling or unable to satisfy the irreducible minimum requirements of

parenthood,” and where preserving the Parents’ rights would prevent T.D.

from being adopted and attaining permanency).

Here, the orphans’ court concluded that Mother and Child were

bonded. Orphans’ Court Opinion, 9/18/2014, at 5. However, the court

reasoned that termination would not be detrimental to Child, and would best

meet Child’s developmental, physical and emotional needs and welfare. Id.

at 5, 7. Mother argues that there was no competent evidence presented to

support the orphans’ court’s determination that termination would be in

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Child’s best interest, “[a]side from bald assertions from CYS.” Mother’s Brief

at 9-11. Mother contends that Child is already struggling with being

separated from her, and states that “severing the bond will certainly have a

devastating effect” on Child. Id. at 9-12. Mother notes that there was no

testimony presented that Child has been harmed by his bond with Mother, or

that Child is bonded with his foster parents or to any prospective adoptive

parents. Id. at 12-13.

Again, we conclude that the record supports the orphans’ court’s

decision to terminate Mother’s parental rights. Mother testified that she

loves Child, that her visits with Child go well, and that she and Child have a

strong bond. N.T., 8/13/14, at 61. Mother also testified that Child calls her

“mommy.” Id. Ms. Brzana agreed that Mother “definitely” loves Child, and

that Child loves Mother. Id. at 34. However, Ms. Brzana stated that this

love should not prevent Child from finding permanency with another family.

Id. Ms. Brzana emphasized that Mother had failed to attend recent visits

with Child, and that Child “has been really verbalizing that he does not feel

loved by his mom. Even though as adults we know that is not true, he has a

hard time comprehending that because she has not been there for her visits

with him.” Id. Ms. Brzana opined that Child will likely always remember

Mother and have some affection for her, but that Child would not be harmed

if Mother’s parental rights were terminated. Id. at 104. She explained that

Child had been saying that he wanted “a new mom and dad.” Id.

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Additionally, Ms. Brzana noted that Child was being provided adoption

preparation services to ease this transition. Id. at 103-04.

Thus, the evidence supports the orphans’ court’s determination that it

would be in Child’s best interest if Mother’s parental rights were terminated.

Admittedly, Child loves Mother, and Mother is correct that there was no

evidence presented during the hearing that Child is bonded with his current

foster family. Further, there was no testimony as to whether or not Child’s

current foster placement is pre-adoptive. However, these concerns are

outweighed in the instant case by Mother’s repeated failure to remedy her

parental incapacity, and by Child’s need for permanence and stability. See

T.D., 949 A.2d at 920-23; J.M., 991 A.2d at 325 (quoting In re Adoption

of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006)) (“‘The court cannot and will

not subordinate indefinitely a child’s need for permanence and stability to a

parent’s claims of progress and hope for the future.’”). Clearly, it would not

be in Child’s best interest for his life to remain on hold indefinitely in hopes

that Mother will one day be able to act as his parent. See M.E.P., 825 A.2d

at 1276 (“A child’s life simply cannot be put on hold in the hope that the

parent will summon the ability to handle the responsibilities of parenting.”)

(citations omitted). Regrettably, Mother is not entitled to relief.

Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Mother’s parental rights

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pursuant to Section 2511(a)(2) and (b), we affirm the order of the orphans’

court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/17/2015

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