J-S10030-15
2015 PA Super 80
ADOPTION OF: C.J.P., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.B.P., MOTHER No. 2650 EDA 2014
Appeal from the Decree entered July 22, 2014,
in the Court of Common Pleas of Delaware County,
Orphans’ Court, at No: 0036-2013
BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.
OPINION BY STABILE, J.: FILED APRIL 15, 2015
J.B.P. (Mother) appeals from the decree entered July 22, 2014, in the
Court of Common Pleas of Delaware County, which involuntarily terminated
her parental rights to her minor son, C.J.P. (Child), born in May of 2011. We
affirm.1
On July 19, 2011, protective custody of Child was awarded to Children
and Youth Services of Delaware County (CYS), as a result of Mother’s
homelessness and mental instability. Child has remained in foster care since
that time. On April 9, 2013, CYS filed a petition to involuntarily terminate
Mother’s parental rights to Child, and a termination hearing was held on July
18, 2014.
At the beginning of the termination hearing, Mother’s court-appointed
trial counsel stipulated to the admission of CYS Exhibit 1 into evidence.
* Retired Senior Judge assigned to the Superior Court.
1
The orphans’ court entered a decree terminating the parental rights of
Child’s unknown father that same day. Child’s father is not a party to the
instant appeal.
J-S10030-15
N.T., 7/18/14, at 4-5. CYS Exhibit 1 consisted of, inter alia, a court
summary prepared by CYS, therapy progress notes, a series of mental
health evaluations, various parenting and visitation progress reports, and a
number of documents related to a criminal charge against Mother.2
Additionally, Mother’s counsel stipulated that the evidence presented at
Mother’s June 12, 2013 goal change hearing would be incorporated by
reference.3 Id. at 4-5. CYS did not present any live testimony at the July
18, 2014 hearing. Mother testified on her own behalf, and neither counsel
for CYS nor Child’s guardian ad litem cross-examined Mother.
On July 22, 2014, the orphans’ court entered its decree involuntarily
terminating Mother’s parental rights to Child. On July 29, 2014, Mother’s
trial counsel filed a petition to withdraw his representation. By order
entered August 5, 2014, the court vacated the appointment of Mother’s trial
counsel and appointed Mother’s current counsel. Mother timely filed a notice
of appeal on August 15, 2014. However, Mother did not concomitantly file a
concise statement of errors complained of on appeal, as required by
Pa.R.A.P. 1925(a)(2)(i). On September 25, 2014, this Court ordered Mother
2
These documents, which are contained in the certified record, are labeled
as individual exhibits. However, they were admitted simultaneously as one
exhibit with eight “attachments.” N.T., 7/18/14, at 4-5.
3
At the conclusion of the June 12, 2013 goal change hearing, the court
denied the requested goal change to adoption to give Mother one final
chance to change her ways. N.T., 6/12/13, at 72.
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to file a concise statement by October 6, 2014. Mother complied by filing a
concise statement with the orphans’ court on that date.4
Mother now raises the following issues for our review.
I. The [orphans’ c]ourt erred in ordering termination of parental
rights of [M]other there being the lack of clear and convincing
evidence to support the [orphans’ c]ourt’s conclusion thereof.
II. CYS failed to extend reasonable good faith services to
[M]other to promote family stability and preserve family unity to
warrant termination of parental rights.
III. [Mother] challenges the constitutionality and fairness of 23
Pa.C.S.A. [§] 2511(b) in violation of the equal protection clause
and due process clauses of the United States and Pa.
Constitution.
Mother’s Brief at 5.
We consider Mother’s claims 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
4
Neither CYS nor Child’s guardian ad litem has objected or claimed any
prejudice as a result of Mother’s failure to file a concise statement until
ordered to do so by this Court. Thus, we have accepted Mother’s statement
in reliance on our decision in In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super.
2009) (holding that a mother’s failure to comply strictly with Pa.R.A.P.
1925(a)(2)(i) did not warrant waiver of her claims, as there was no
prejudice to any party). Cf. J.M.R. v. J.M., 1 A.3d 902, 906-07 (Pa. Super.
2010) (holding that a father had waived his claims on appeal after this Court
ordered him to file a concise statement, and the father’s statement was
untimely).
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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
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 Sections 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).
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Here, we analyze the court’s decision to terminate under Sections
2511(a)(8) 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:
***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the date
of removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
***
(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) … (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)(8), (b).
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(8), the following factors must be demonstrated: (1)
The child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
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In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
“Notably, termination under Section 2511(a)(8), does not require an
evaluation of [a parent’s] willingness or ability to remedy the conditions that
led to placement of her children.” In re Adoption of R.J.S., 901 A.2d 502,
511 (Pa. Super. 2006) (citations omitted).
Instantly, the orphans’ court concluded that Mother’s parental rights
should be terminated because of her unwillingness or inability to address her
mental health issues. Orphans’ Court Opinion, 9/18/14, at 8-9, 12-15
(unpaginated). The court also emphasized Mother’s lack of stable housing,
her resentment and hostility towards others, and her “refusal to cooperate
(or even communicate) with CYS . . . .” Id. at 9, 14.
In response, Mother presents a wide variety of arguments. Mother
contends that the orphans’ court abused its discretion by relying solely on a
psychiatric evaluation produced by Dr. Stephen Mechanick in January and
February of 2013, which recommended that Child’s permanency goal should
be changed to adoption, and by disregarding a psychological evaluation
produced by Dr. Karen Dybner-Madero in May of 2012, which was less
critical of Mother, but which did not directly address whether Child’s goal
should be changed. Mother’s Brief at 8. Mother then blames her CYS
caseworker for not being sufficiently supportive and accepting of her,
contends that it was the caseworker’s lack of support that resulted in
Mother’s lack of contact with CYS, and asserts that CYS should have
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assigned her a new caseworker. Id. at 9. Mother argues that she did well
during her visits with Child, and that she improved her parenting skills. Id.
at 9-10, 12. Mother also states that she is seeking employment, and that
she has made, and continues to make, progress toward improving her
mental health and other aspects of her life. Id. at 10-12. Finally, Mother
argues that the court failed to consider her individual circumstances, such as
her history of being sexually abused, and placed a “sole and undue emphasis
on her mental health issues to the exclusion of all else and without relating it
to her true ability to parent which was positively documented in other areas
by other service providers.” Id. at 13-14.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by involuntarily terminating
Mother’s parental rights to Child. During the June 12, 2013 goal change
hearing, CYS caseworker, LaKisha Smith, testified that she had been
working on Mother’s case since August of 2011. N.T., 6/12/13, at 4. Ms.
Smith noted that Child was adjudicated dependent as a result of Mother’s
mental health issues and unstable housing. Id. at 5. Ms. Smith conceded
that Mother visited regularly with Child since that time, and that Mother had
obtained housing. Id. at 7. However, Ms. Smith testified that Mother was
discharged from therapy at Northwestern Human Services and placed on a
waiting list in March of 2013. Id. at 8. According to Ms. Smith, this was
because Mother was volatile and engaged in “angry outbursts” during
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therapy, and “many therapists have refused to continue to work with
[Mother].” Id. Ms. Smith also noted that Mother “refuses to have contact
with me.”5 Id. at 11.
Dr. Steven Mechanick testified that he is a physician specializing in the
practice of psychiatry, and that he prepared a psychiatric evaluation of
Mother. Id. at 15-16. Dr. Mechanick explained that he diagnosed Mother
with “a depressive disorder not otherwise specified[,]” as well as “a
personality disorder not otherwise specified with paranoid and borderline
features.” Id. at 19. Dr. Mechanick opined that Mother’s depressive
disorder would have little impact on her ability to act as a parent, and that
Mother “might improve.” Id. at 20, 23. However, Dr. Mechanick expressed
greater concern with respect to Mother’s personality disorder. Id. Dr.
Mechanick testified that Mother’s personality issues “are pervasive” and have
limited her ability to “take care of herself in some of the normal, broader
functional areas of life[,]” and “to function in the world.” Id. at 20-22. Dr.
Mechanick further explained that individuals with similar personality
disorders typically need “quite a number of years” before they are able to
improve, if they ever improve at all. Id. at 23, 33. Dr. Mechanick noted
that Mother is “not particularly insightful or motivated to change her own
5
In the court summary submitted at the July 18, 2014 termination hearing,
Ms. Smith opined that Child is “extremely bonded” to his foster parents, that
removing Child from his current foster placement would be “extremely
detrimental” to him, and that Mother’s parental rights should be terminated.
CYS Exhibit 1, at 17-18.
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sort of world view or patterns of behavior,” and that this “would worsen her
prognosis.” Id. at 23. Dr. Mechanick acknowledged that Mother likely
experiences heightened stress as a result of her interactions with CYS, but
opined that this stress was not the primary cause of her mental condition.6
Id. at 26-27.
Clinical visitation worker Kenya Cobb testified that she had been
conducting biweekly supervised visits with Mother since 2012, and that
Mother began receiving unsupervised visits at her home in April of 2013.
Id. at 37. Ms. Cobb testified that Mother had been doing well during visits,
but that “I just had mainly concerns with mom when she becomes upset.
We’ve had to . . . talk her down through a few of the visits.” Id. at 38. Ms.
Cobb further explained that Mother “has done okay caring for [Child] with
short periods of time,” but that she was concerned that Mother would be
unable to care for Child full-time, as a result of her mental health issues.
Id. at 39.
Finally, Mother testified that she did not want to have any contact with
CYS because “they’re really negative. They keep just being mean to me
about my mental health, [and] my past history.” Id. at 49-50. Mother
stated that she asked for a different caseworker, but that CYS declined to
6
In Dr. Mechanick’s evaluation, which was admitted into evidence at the
July 18, 2014 termination hearing, he concluded that “[i]t may take many
years for [Mother] to reach a level of emotional stability and improved
functioning so that she could adequately care for [Child,]” and that a goal
change to adoption “is reasonable and appropriate.” CYS Exhibit 5, at 10.
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provide her one. Id. at 50. Mother refused to go back to therapy and
explained that “I just can’t” attend therapy, because “I can’t talk about my
past.” Id. at 53-54, 59. Mother also testified that she had been living in an
apartment since March 1, 2013. Id. at 60. However, Mother admitted that
this was the third location where she had been residing since January of
2013. Id. at 60-62.
During the termination hearing on July 18, 2014, Mother further
testified concerning her efforts at reunification following the June 12, 2013
goal change hearing. Mother explained that she was incarcerated shortly
after the goal change hearing, and lost her apartment. N.T., 7/18/14, at 15,
19. Mother stated that she was released on “August 26 or 27 of 2013,” and
that she is currently on parole. Id. at 19-20. Mother indicated that she was
homeless at the time of her release, but that she would be moving into a
new residence on September 1, 2014. Id. at 21, 27-28. Mother claimed
that she attends counseling and sees a doctor for psychiatric medication.
Id. at 29-32. Mother also claimed that she was trying to comply with CYS
“little-by-little” but that she could not do everything that had been asked of
her. Id. at 40. For example, Mother admitted that she was not meeting
regularly with CYS and keeping them advised of her location. Id.
Concerning her relationship with Child, Mother testified that she was
initially unable to visit with him after her release from incarceration because
she lacked transportation. Id. at 22-23. Mother stated that she was again
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able to visit with Child at the hospital “in the middle of October/November”
of 2013. Id. at 23. Mother stated that she met with Child’s foster mother
at the hospital, and that she also had telephone conversations with the
foster mother about Child. Id. at 23-24. Mother acknowledged that Child is
“attached” to his foster mother, and that, when she visited with Child in the
hospital, “he didn’t really want to be near me because he ain’t seen me in a
while,” and “it took him a while in the hospital to be attached to me.” Id. at
24. Mother noted that she now visits with Child once every two weeks. Id.
at 41. Mother testified that her visits with Child go well, and that they talk
and play together. Id. at 44. Mother explained that she did not want to
remove Child from the care of his foster mother, who was taking good care
of Child. Id. at 26. However, Mother stated that she would not give up her
rights to Child voluntarily, and that she wanted Child back. Id. at 25.
Mother reported that Child had stated to her that he “wants to be with [his
foster mother] and he wants to be with me.” Id. at 45.
Accordingly, the record confirms that Child had been out of Mother’s
care for a period in excess of 12 months at the time CYS filed its termination
petition on April 9, 2013, and that the conditions that led to Child’s
placement continued to exist, as Mother had failed to remedy her mental
health issues and find stable housing. Most critically, the evidence
establishes that Mother was discharged unsuccessfully from therapy in March
of 2013 and that, at the time of the goal change hearing, she had no
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intention of returning. While Mother testified during the termination hearing
that she is now attending counseling and is making more of an effort to
comply with CYS, these remedial efforts took place after CYS filed its petition
to terminate her parental rights. Mother does not dispute that she received
notice of the termination petition at the time it was filed in April of 2013 and,
therefore, the orphans’ court was not permitted to consider these efforts.
See 23 Pa.C.S.A. § 2511(b) (“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.”). Moreover,
while Mother contends that the court placed undue emphasis on Dr.
Mechanick’s psychiatric evaluation, we observe that the orphans’ court was
free to weigh the evidence presented during the termination proceedings as
it saw fit. See T.S.M., 71 A.3d at 267.
Additionally, the record confirms that terminating Mother’s parental
rights would best serve the needs and welfare of Child. At the termination
hearing, Mother acknowledged that Child is “attached” to his foster mother,
and that the foster mother has been taking good care of Child. In contrast,
Mother has not cared for Child since July of 2011, when he was about two
months old. At the time of her termination hearing, Mother had failed for a
period of nearly three years to remedy her problems, and the evidence
suggests that Mother is unlikely to achieve recovery anytime soon. It would
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not serve Child’s needs and welfare to place his life on hold any longer. 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.”). No relief is due.7
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).
“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).
7
In her brief, Mother also asserts that the orphans’ court erroneously
considered certain irrelevant evidence. Mother’s Brief at 13. We observe
that Mother did not include this claim in her concise statement of errors
complained of on appeal. Thus, it is waived. See Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (“[A]ny issue not
raised in a statement of matters complained of on appeal is deemed
waived.”) (citations omitted).
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[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 Parents’ rights would prevent T.D. from
being adopted and attaining permanency).
Here, the orphans’ court found that Child was bonded with his foster
mother, and that removing Child from his current placement would be
detrimental to him. Orphans’ Court Opinion, 9/18/14, at 15, 17. In
contrast, the court concluded that Child has “only a very modest connection”
with Mother, and that it would be in Child’s best interest for Mother’s
parental rights to be terminated. Id. at 17. Mother argues that the
orphans’ court failed to conduct an adequate analysis of Mother’s bond with
Child, that her bond with Child is “significant,” and that the court lacked
sufficient evidence from which to conclude that termination was in Child’s
best interest. Mother’s Brief at 14. Mother emphasizes that she visited
regularly with Child, that she did well during her visits, and that visitation
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progress reports contained in CYS Exhibit 1 confirm that she and Child are
bonded. Id. at 14-15.
Again, we conclude that the orphans’ court did not abuse its discretion.
As noted during our discussion of Section 2511(a)(8), it is undisputed that
Child is bonded with his foster mother, and that foster mother has raised
Child and cared for him for years while Mother failed to take the steps
necessary to achieve reunification. Admittedly, there also is significant
evidence in the record indicating that Mother and Child are bonded. For
example, a majority of Mother’s visitation progress reports from September
of 2012 through May of 2013 indicate that Mother and Child “seem to have a
strong bond.” CYS Exhibit 7, at 6, 9, 12, 19, 22, 32, 38 (unpaginated).
However, Mother admitted that Child “didn’t really want to be near me”
when she visited him in the hospital in November of 2013. N.T., 7/18/14, at
24. Even if Mother and Child still are bonded, that bond is outweighed in the
instant matter by Mother’s inability to remedy the causes of Child’s
placement, 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
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parent's claims of progress and hope for the future.’”)). Mother is not
entitled to relief.8
Mother’s second issue is that her parental rights should not have been
terminated because CYS failed to provide reasonable reunification services.
Mother’s Brief at 16. Mother contends that CYS was obligated to continue
providing her services, but “gave up on her much too early.” Id.
Mother’s issue fails, as it is clear that CYS provided her reasonable
reunification services. During the June 12, 2013 goal change hearing, Ms.
Smith explained that CYS, inter alia, referred Mother to a visitation program,
to parenting classes, and for both a psychological and psychiatric evaluation.
N.T., 6/12/14, at 6. After Mother was discharged unsuccessfully from
therapy at Northwestern Human Services, CYS referred Mother for therapy
at two new locations. Id. at 75-76; CYS Exhibit 1, at 14. In addition, while
Mother’s visits with Child stopped as result of her failure to contact CYS
following her release from incarceration, Mother was permitted to resume
visitation at CYS in February of 2014. CYS Exhibit 1, at 16; CYS Exhibit 7, at
1 (unpaginated).
8
In connection with her other arguments, Mother also emphasizes the
portion of Section 2511(b) indicating that “[t]he 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.” 23 Pa.C.S.A. § 2511(b); Mother’s
Brief at 12. We note that this provision does not apply to the instant matter,
as Mother’s parental rights were terminated due to a combination of factors,
including her mental instability and unwillingness to work with CYS, and not
“solely on the basis of environmental factors” like Mother’s unstable housing.
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Even if CYS had failed to provide reasonable services, Mother still
would not be entitled to relief. In In re D.C.D., 105 A.3d 662 (Pa. 2014),
our Supreme Court analyzed the language of Section 2511(a)(2) of the
Adoption Act, as well as Section 6351 of the Juvenile Act, 42 Pa.C.S.A.
§ 6351. The Court reasoned that, while “reasonable efforts may be relevant
to a court’s consideration of both the grounds for termination and the best
interests of the child,” neither of these provisions, when read together or
individually, requires reasonable efforts. Id. at 671-75 (citation omitted).
The Court also concluded that reasonable efforts were not required to
protect a parent’s constitutional right to the care, custody, and control of his
or her child. Id. at 676-77. While the Supreme Court in D.C.D. focused its
analysis on Section 2511(a)(2), we find the Supreme Court’s reasoning
equally applicable to Section 2511(a)(8). Like Section 2511(a)(2), nothing
in the language of Section 2511(a)(8) suggests that reasonable reunification
services are necessary to support the termination of parental rights.
In her third issue, Mother challenges the constitutionality of Section
2511(b) of the Adoption Act. Mother’s Brief at 17-18. Mother focuses her
challenge on the third sentence of Section 2511(b), which provides that,
“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.” Id.; 23 Pa.C.S.A. § 2511(b).
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According to Mother, this provision provided CYS an unfair advantage during
her termination hearing, as it prohibited Mother from presenting witnesses
who would testify concerning her remedial actions taken after the filing of
the termination petition, while permitting CYS to present its own evidence of
Mother’s ongoing parental incompetence. Mother’s Brief at 17. Mother
suggests that this unfair advantage is a violation of her due process and
equal protection rights under the United States and Pennsylvania
Constitutions. Id. at 17-18.9 Specifically, Mother emphasizes the lengthy
delay between the filing of the petition to terminate her parental rights and
her termination hearing, and argues that there is no compelling state
interest in preventing the court from considering current information
concerning her abilities as a parent. Id. at 17. Mother also suggests that
CYS should not have been permitted to present its own post-filing evidence,
“under fairness and equity doctrines[.]” Id. at 17-18.
Again, we conclude that Mother is not entitled to relief. In D.C.D., our
Supreme Court rejected the suggestion that Section 2511 violates due
process principles. The Supreme Court offered the following discussion.
9
To the extent Mother argues that the Pennsylvania Constitution provides
her with greater protection under these circumstances than the United
States Constitution, she cites no authority in support of this proposition, and
we decline to consider this argument. See In re F.C. III, 2 A.3d 1201,
1212 (Pa. 2010) (concluding that the appellant’s due process rights were
equal under the United States and Pennsylvania Constitutions, where the
appellant failed to cite to the Pennsylvania Constitution or offer any
argument to the contrary).
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As we have previously held, the right to make decisions
concerning the care, custody, and control of one’s children is one
of the oldest fundamental rights protected by the Due Process
Clause [of the Fourteenth Amendment to the United States
Constitution]. Accordingly, any infringement of that right by the
state must be reviewed by this Court pursuant to a strict
scrutiny analysis, determining whether the infringement is
narrowly tailored to effectuate a compelling state interest.
Obviously, termination of parental rights is the most
extreme infringement of parental rights. Additionally, it is
beyond cavil that the protection of children, and in
particular the need to provide permanency for dependent
children, is a compelling state interest. In balancing these
interests, the General Assembly has created a detailed system
setting forth the limited situations which would result in removal
of children from their parents and termination of parental rights.
Moreover, the statutory construct requires specific
determinations by the trial court regarding the proper placement
and permanency goals of the children at each step of the
process. Ultimately, the grounds of termination must be
demonstrated by the state by clear and convincing evidence.
We conclude that this system is sufficiently narrowly tailored to
protect a parent’s fundamental right while also ensuring the
safety and permanency needs of dependent children.
In re D.C.D., 105 A.3d at 676-77 (quotation marks and citations omitted)
(emphasis added).
Further, we disagree with Mother’s contention that the relevant portion
of Section 2511(b) does not serve a compelling state interest. The subject
provision furthers the compelling state interest of providing dependent
children with permanency, as it prevents unwilling or incapable parents, like
Mother, from continuing to delay the adoption of their children with last-
minute attempts at reunification.
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Mother’s claim that Section 2511(b) violates her right to equal
protection also fails. “‘The essence of the constitutional principle of equal
protection under the law is that like persons in like circumstances will be
treated similarly.’” Markovsky v. Crown Cork & Seal Co., 107 A.3d 749,
766 (Pa. Super. 2014) (quoting Curtis v. Kline, 666 A.2d 265, 267 (Pa.
1995)). Here, in the context of a termination of parental rights proceeding,
Mother and CYS clearly are not “like persons in like circumstances.” Thus,
Mother’s argument with respect to Section 2511(b) fails to implicate equal
protection principles.
Finally, Mother contends in connection with her other constitutional
arguments that she did not receive the benefit of a “full” termination
hearing, because CYS did not present any live testimony and instead relied
solely on documentary evidence. Mother’s Brief at 18. Mother concedes
that her trial counsel stipulated to the admission of the CYS documentary
evidence, and that counsel indicated during the hearing that Mother also was
in agreement with this arrangement, but notes that the court did not
colloquy Mother and suggests that “it is not clear from the record that
[M]other agreed to this voluntarily, knowingly[,] and intelligently.” Id.
Mother states that her fragile mental health prevented her from challenging
her trial counsel’s stipulations, and the orphans’ court “should have
mandated a full hearing to better protect her interests and the clear due
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process that should have been afforded in such an important termination
proceeding.” Id.
Tellingly, Mother does not direct our attention to any authority
indicating that the orphans’ court had a duty to colloquy Mother, or to sua
sponte refuse to accept her trial counsel’s stipulations, based on Mother’s
questionable mental health. We see no basis on which to reverse the
orphans’ court’s decree.
Accordingly, because we conclude that none of Mother’s arguments
entitles her to relief, we affirm the decree of the orphans’ court.
Decree affirmed.
Judge Platt joins the opinion.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2015
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