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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: P.E., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.E., MOTHER
No. 1194 EDA 2014
Appeal from the Decree entered March 19, 2014
In the Court of Common Pleas of Monroe County
Orphans' Court at No: 88 DP 2013, 2 O.C.A. 2014
BEFORE: DONOHUE, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 29, 2014
L.E. (Mother) appeals from the decree entered March 19, 2014, which
terminated involuntarily her parental rights to her minor child P.E. (Child),
born in September of 2013.1 We affirm.
Prior to Child’s birth, in November of 2010, Father was accused of
sexually abusing two of Child’s older siblings. Criminal charges were filed
against Father, and Mother also was charged in connection with the abuse.
The couple’s five children were placed in foster care, and Mother’s parental
rights to the children were terminated on February 13, 2012. In July of
2013, Mother was tried and convicted of endangering the welfare of children
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1
The decree also terminated the rights of Child’s father, D.E. (Father), who
is not a party to the instant appeal.
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and corruption of minors.2 On February 18, 2014, she was sentenced to two
to five years in prison. During Mother’s incarceration, in August of 2013, it
was discovered that Mother was pregnant with Child. Child was taken into
foster care upon his release from the hospital, and placed with three of
Mother’s other children.
Meanwhile, Children & Youth Services (CYS) became aware that
Mother had yet another child, a daughter, who was residing in North
Carolina with Child’s maternal grandmother (Grandmother). Mother had not
reported the existence of this child, who was born in September or October
of 2012, to CYS.
On January 6, 2014, CYS filed a petition to terminate Mother’s parental
rights to Child. A hearing was held on March 14, 2014, and the orphans’
court entered a decree terminating Mother’s rights on March 19, 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 raises the following issue on appeal.
Whether the [l]ower [c]ourt erred by terminating Mother’s
[p]arental [r]ights within 5 ½ months of the birth of the child,
despite Mother’s compliance with the family service plan to the
best of her ability, and despite a lack of clear and convincing
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2
The exact circumstances surrounding Mother’s criminal charges are not
contained in the certified record. However, Mother acknowledges that “[h]er
convictions stemmed from acts of omission regarding the sexual abuse her
husband had perpetrated on two of her daughters.” Mother’s Brief at 10.
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evidence that termination best served the child’s emotional
needs and welfare?[]
Mother’s Brief at 6.
Our Supreme Court recently reiterated the applicable standard of
review as follows:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. 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.
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
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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). The
burden is upon 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).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to 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.
***
(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.
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23 Pa.C.S.A. § 2511(a)(2), (b).
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal 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). The grounds for termination of parental
rights under Section 2511(a)(2), 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). Such
incapacity may be demonstrated by a parent’s incarceration. As our
Supreme Court has explained,
incarceration, while not a litmus test for termination, can be
determinative of the question of whether a parent is incapable of
providing “essential parental care, control or subsistence” and
the length of the remaining confinement can be considered as
highly relevant to whether “the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent,” sufficient to provide grounds for
termination pursuant to 23 Pa.C.S. § 2511(a)(2).
In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012) (citations omitted).
With respect to Section 2511(b), the requisite analysis is as follows:
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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. 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. Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some
citations omitted).
Instantly, Mother argues that the orphans’ court “erred in finding that
[Mother] did not meet her responsibilities as a parent while incarcerated.”
Mother’s Brief at 8. Mother insists that her incarceration cannot, by itself,
support the termination of her parental rights, and that she has “evidenced a
clear and settled purpose to provide care, support and love for” Child. Id.
While Mother admits that the orphans’ court’s “findings regarding [Mother’s]
incarceration and the circumstances surrounding [Child’s] birth arguably
justify the court’s determination that [CYS] sustained its burden under”
Section 2511(a)(2), she contends that “it should be clear from the record
that the lower court erred in determining that [CYS] established its burden
under” Section 2511(b). Id. at 11. Mother then goes on to list the “steps
[she] has taken to establish a connection with” Child, including completing
parenting and life skills classes, completing drug and alcohol counseling,
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filing for divorce from Father, and taking “affirmative steps to establish
visitation” with Child. Id.
We first address whether the orphans’ court erred by terminating
Mother’s rights with respect to Section 2511(a)(2). Here, the orphans’ court
concluded that Mother’s parental rights should be terminated because of her
present incarceration, and because of her history of failing to protect Child’s
older siblings from abuse. Orphans’ Court Opinion, 4/28/2014, at 4. The
court emphasized that “Mother has provided no care to the minor child since
his birth, and will be unable to provide any care at least through the time of
her release from incarceration.” Id. at 5.
The orphans’ court also noted “other concerns regarding Mother’s
ability to care for [Child] appropriately even after her release.” Id. The
court found that Mother intentionally concealed her pregnancies with both
her sixth child and Child, and expressed concern that Mother “chose to have
two more children with Father after he was charged with sexually assaulting
two of their five children.” Id. at 5-6. The orphans’ court observed that the
sixth child was placed with Grandmother, and that Grandmother “had
another relative living in her home who had a criminal record, [sic] that
prevented the placement of [Child] into that home.” Id. at 5. The court
reasoned that Mother had failed to show any remorse or concern for her
actions during the termination hearing, and that, “[a]lthough Mother has not
yet had the opportunity to care for [Child] since he was born, we are
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convinced by her prior actions, inactions and testimony, that she will not be
able to provide essential care to [Child] in the future.” Id. at 7.
Our review of the record supports the orphans’ court’s findings. The
record reflects that Mother was first incarcerated on July 23, 2013, and that
she is serving a sentence of two to five years in prison, including time
served. N.T., 3/14/14, at 19, 36-37. Mother received 174 days of credit for
time served and, at a minimum, will have to be incarcerated for “about
another year and a half” from the date of her termination hearing. Id. at
27. Mother’s incarceration has rendered her incapable of parenting Child
from the time Child was born, and it is unclear precisely when Mother will be
released.
Moreover, considering Mother’s prior history, we agree with the
orphans’ court that it is unlikely that Mother will ever be able to parent Child
appropriately. While Mother testified that she had completed a “life
application” class, and a “parenting and family skills class,” while in prison,
she was unable to articulate with any detail what she learned in these
classes. Id. at 39. For example, when asked about her life application
class, Mother responded, “It’s a life application. It just helps with skills to
help better yourself and to help you with just day-to-day life and just
education about a broad amount of everything.” Id. When asked about her
parenting class, Mother explained that it involved, “Parenting and family
skills, specifically, for parent and child, and it helps with how to protect your
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child and various and various different subjects and parenting. . . . Just, I
just learned how to parent. They also talk about discipline, talk about
raising your child, different things.” Id. Mother’s explanation of how drug
and alcohol counseling has improved her parenting abilities was likewise
vague. Mother stated that the counseling was, “just for education, because
you know, raising children, you need as much education as possible.” Id. at
40.
Mother also indicated during the termination hearing that she had filed
for divorce from Father. Id. However, as observed by the orphans’ court,
Mother filed for divorce only after having an additional two children with
Father. Mother’s explanation for not getting a divorce earlier was that she
was unable to afford it. Id. at 41. Mother struggled to explain how she had
become more financially secure in recent months, despite being
incarcerated. Id. at 46. Mother claimed that she saved up money that she
had received from Father’s father for doing yard work and “things in the
house.” Id.
In addition, the record confirms the orphans’ court’s conclusion that
Mother had engaged in deceitful behavior by concealing the birth of her sixth
child, and by hiding her pregnancy with Child. Mother claimed during her
termination hearing that she did not know she was pregnant with Child until
her incarceration. Id. at 45. However, Mother was approximately seven
months pregnant at the time she was incarcerated. Id. at 50. According to
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Mother, she “wasn’t even showing.” Id. at 51. Mother then went on to
claim that her pregnancy was not discovered until three weeks after her
intake, when she was “approximately 33 weeks,” or over eight months
pregnant. Id. at 51-52. In contrast, CYS caseworker Jennifer Payne-
Fetherman testified that she contacted Grandmother during this period. Id.
at 9. Grandmother was aware that Mother was pregnant, and she indicated
that Mother intended to send Child to live with family in Oklahoma. Id.
Grandmother informed Ms. Payne-Fetherman that Mother had been trying to
“stay under the radar, since [CYS was] still involved, and she was involved
in the criminal proceedings.” Id. at 9-10.
Similarly, Mother’s sixth child was born “while the criminal charges
were pending and [Mother] was out on bail,” and the child was given a last
name different than Mother’s. Id. at 8, 31, 47. Ms. Payne-Fetherman
testified that Mother had told her specifically that she had not had any
additional children after the initial five but before Child. Id. at 6-7. When
asked if she ever reported the existence of the sixth child to CYS, Mother
stated that she did not, because “I wasn’t in contact with anyone. It was
like a period of -- there was nothing going on at that particular period.” Id.
at 49. Mother testified that she placed her sixth child in the care of
Grandmother, not because she was attempting to hide the child, but
because she “thought it would be best and safest for [the sixth child] to
remain with my mother.” Id. at 42. However, Mother could not provide a
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clear explanation as to why this would be the case. Mother elaborated as
follows.
“Because of the legal issues that I was facing; all of the things
that I was facing. . . . Like I said, just legal issues. There
wasn’t a way for me to -- it just wasn’t feasible because she was
an infant, and in her best interest to be with my mother at that
time.”
Id. at 48.
Moreover, Child may have faced a considerable safety risk living with
Grandmother, as Mother’s brother lives with Grandmother, and he has an
“extensive drug criminal history.” Id. at 16.
In sum, the record reveals that Mother is presently incapable of being
a parent. This incapacity is demonstrated by Mother’s incarceration, her
tragic history with her five oldest children, and what the orphans’ court
concluded were her attempts at hiding her two youngest children from CYS.
This incapacity has left Child without parental care and control for his entire
life, and it was reasonable for the orphans’ court to conclude that Mother
cannot, or will not, remedy this incapacity. Thus, we conclude that the
orphans’ court did not abuse its discretion by terminating Mother’s parental
rights pursuant to Section 2511(a)(2).
We now consider whether termination was warranted under Section
2511(b). With respect to the bond analysis pursuant to section 2511(b), our
Supreme Court has stated that, “[c]ommon 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.”
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T.S.M., 71 A.3d at 268 (citation omitted). The Court directed that, in
weighing the bond considerations pursuant to section 2511(b), “courts must
keep the ticking clock of childhood ever in mind.” Id. at 269. The T.S.M.
Court observed that, “[c]hildren are young for a scant number of years, and
we have an obligation to see to their healthy development quickly. When
courts fail . . . the result, all too often, is catastrophically maladjusted
children.” Id.
Here, the orphans’ concluded that it would be in Child’s best interest if
Mother’s parental rights were terminated. Id. The court found that Child is
bonded with his foster parents, that he has no bond with Mother, and that
he is unlikely to develop a bond given Mother’s incarceration. Id.
Additionally, the orphans’ court observed that termination “would ensure
[Child] remain in the pre-adopt home with his other siblings, where he has a
bond, where he is safe and where he has resided since birth.” Id.
Again, the record supports the orphans’ court’s decision. Ms. Payne-
Fetherman explained that she has had the opportunity to see Child interact
with his siblings, and that they “adore” Child, and “love having him there.”
N.T., 3/14/2014, at 23. Ms. Payne-Fetherman testified that Child is
“extremely, absolutely” bonded with his siblings, and “without a doubt,
absolutely” bonded with his foster parents. Id. Conversely, there was no
evidence presented at the termination hearing that Child was bonded with
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Mother, and it is highly unlikely that any bond exists, given that Child was
removed from Mother immediately after his birth.
Further, we agree that it would be difficult for Mother and Child to
develop such a bond during her incarceration. Mother’s visits with Child
consist of putting a phone receiver up to Child’s ear and allowing Mother to
speak to him from behind a pane of glass. Id. at 25. At the time of the
hearing, these visits took place every two weeks or so, and “usually last[ed]
anywhere from 15 minutes to 30 minutes, depending on [Child] and his
mood that day.” Id. at 18-19. Mother testified that, while she tried to have
“special visits” with Child that did not take place behind glass, she was
informed that “the facility doesn’t have a clean enough, or an appropriate
enough, room; otherwise they would allow it, but they can’t allow it because
they don’t have the setup for it.” Id. at 44. Mother also admitted that she
had not mailed Child any cards or letters, and had not “had any contact at
all from the jail” other than visits. Id. at 47-48.
Thus, it is clear that it would be in Child’s best interest if Mother’s
parental rights were terminated. To conclude otherwise would deny Child
his place in a loving and stable family, and would condemn Child to a state
of uncertainty for the first two to five years of his life, based solely on
speculation that Mother, who has never actually parented Child, who has
already proven her dramatic incompetence as a parent, and with whom Child
has no bond, will one day be able to care and provide for him.
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We therefore conclude that the orphans’ court did not abuse its
discretion by terminating Mother’s parental rights pursuant to Section
2511(a)(2) and (b), and we affirm the decree of the orphans’ court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
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