J-S22045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF E.M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.D.E., MOTHER : No. 2072 WDA 2014
Appeal from the Order Entered November 24, 2014,
in the Court of Common Pleas of Westmoreland County,
Orphans’ Court, at No(s): 163 of 2013
IN RE: ADOPTION OF D.J.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.D.E., MOTHER : No. 2073 WDA 2014
Appeal from the Order Entered November 24, 2014,
in the Court of Common Pleas of Westmoreland County,
Orphans’ Court, at No(s): 161 of 2013
BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 22, 2015
E.D.E. (Mother) appeals from the orders entered November 24, 2014,
in the Court of Common Pleas of Westmoreland County, which terminated
involuntarily her parental rights to her two minor daughters, E.M.S. and
D.J.S. (collectively, the Children).1 We affirm.
E.M.S. was born in June of 2010. On August 13, 2012, E.M.S. was
removed from Mother’s care by Father’s sister, K.S., due to Mother’s drug
* Retired Senior Judge specially assigned to the Superior Court.
1
The parental rights of the Children’s father, D.L.S. (Father), were
terminated by separate orders entered that same day. These orders are not
presently before the Court. However, Father has filed a brief as a participant
in this matter, in which he contends that Mother’s parental rights should not
have been terminated.
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abuse. E.M.S. was adjudicated dependent by order dated December 10,
2012, and placed in the care of the Westmoreland County Children’s Bureau
(WCCB). Mother gave birth to D.J.S. in December of 2012. D.J.S. was born
addicted to heroin and was placed in the care of WCCB immediately upon
her release from the hospital. D.J.S. was adjudicated dependent by order
dated February 5, 2013. Currently, the Children reside with D.S. and C.S.
(collectively, the Foster Parents).
On December 30, 2013, WCCB filed petitions to terminate involuntarily
Mother’s parental rights to the Children. A hearing was held on November
20, 2014. On November 24, 2014, the orphans’ court entered its orders
terminating Mother’s parental rights. Mother timely filed notices of appeal,
along with concise statements of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother now raises the following issues for our review.
I. Whether the [orphans’] court erred in finding by clear and
convincing evidence that the moving party met its burden as to
terminating the parental rights of [M]other under 23 Pa.C.S.
§[]2511(a)(1)?
II. Whether the [orphans’] court erred in finding by clear and
convincing evidence that the moving party met its burden as to
terminating the parental rights of [M]other under 23 Pa.C.S.
§[]2511(a)(2)?
III. Whether the [orphans’] court erred in finding by clear and
convincing evidence that the moving party met its burden as to
terminating the parental rights of [M]other under 23 Pa.C.S.
§[]2511(a)(5)?
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IV. Whether the [orphans’] court erred in finding by clear and
convincing evidence that the moving party met its burden as to
terminating the parental rights of [M]other under 23 Pa.C.S.
§[]2511(a)(8)?
V. Whether the [orphans’] court erred in finding by clear and
convincing evidence that the moving party met its burden under
23 Pa.C.S. §[]2511(b) that the best interests of the [C]hildren
are met by terminating [M]other’s parental rights?
Mother’s brief at 4 (orphans’ court answers omitted).
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
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. §§ 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
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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). Here, we analyze the court’s decision to
terminate under Sections 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
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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. § 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, the orphans’ court concluded that Mother has demonstrated
a continued inability to parent the Children, and that Mother has shown that
she is incapable of remedying this incapacity. Orphans’ Court Opinion,
1/28/2015, at 7-8. The court emphasized that Mother continues to struggle
with drug addiction, and that she has repeatedly been incarcerated. Id.
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Mother contends that she has stable housing and a verifiable source of
income, and that she has completed anger management, life skills, and
parenting programs. Mother’s brief at 11. Mother further argues that she is
addressing her ongoing drug addiction issues, that she made an effort to
reach out to the Children during the time she was incarcerated, and that
there is a “reasonable possibility” that she will one day be able to care for
the Children. Id. at 11-12.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by terminating Mother’s
parental rights involuntarily. During the termination hearing, Ms. Jessica
Nowlin testified that she was the Children’s WCCB caseworker until August
13, 2014. N.T., 11/20/2014, at 86. Ms. Nowlin explained that Mother
repeatedly has been incarcerated since the time the Children were placed in
foster care. Specifically, Mother was incarcerated from January 28, 2013,
until April 13, 2013; from May 21, 2013, until October 29, 2013; and from
February 23, 2014 until “recently.” Id. at 91-92.
Ms. Nowlin further testified that Mother has failed to remedy her drug
abuse problem. Ms. Nowlin noted that Mother completed an inpatient
rehabilitation program at White Deer Run after being released from
incarceration in October of 2013. Id. at 103-04, 107. Ms. Nowlin indicated
that Mother then entered an intensive outpatient treatment program at
Green Briar Treatment Center, but she failed to complete this program. Id.
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at 119-21. Mother promptly relapsed in January of 2014, and then
overdosed, which resulted in her most recent incarceration. Id.
In addition, Ms. Nowlin reported that Mother had 12 visits with the
Children during the time they were in foster care, including one visit in 2012,
nine visits in 2013, and two visits in 2014. Id. at 87-89. Mother’s first visit
took place on December 20, 2012. Id. at 87. Mother did not have visits
with the Children while she was incarcerated between January and April of
2013. Id. at 106. However, Mother did receive five visits while incarcerated
between May and October of 2013. Id. Ms. Nowlin explained that these
visits stopped because Mother “got in trouble in jail … and that was part of
her punishment.” Id. at 107. Mother then had five visits between
November of 2013, and February of 2014.2 Id. at 92, 107. Ms. Nowlin also
noted that Mother sent pictures or notes to the Children on three occasions
during her time as the caseworker, and that Mother sent the Children money
once. Id. at 105.
Ms. Deborah Unferdorfer testified that she took over as the Children’s
caseworker after the departure of Ms. Nowlin on August 13, 2014. Id. at
124. Ms. Unferdorfer stated that Mother called her after she was released
2
It appears that the 12th visit referenced by Ms. Nowlin was the Children’s
October 22, 2014 bonding evaluation. Ms. Ann Hall testified that she
provided Mother with specialized supervised visitation and parenting
instruction services starting in January of 2014. N.T., 11/20/2014, at 47-48.
Ms. Hall explained that Mother visited with the Children on January 24,
2014, that Mother cancelled a visit scheduled for January 31, 2014, and that
Mother did not visit with the Children again until the evaluation took place.
Id. at 49-52.
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from her most recent period of incarceration on October 6, 2014. Id. at
126. After her release, Mother reported that she was living with some
“church members.” Id. However, Mother called again on November 10,
2014, and informed Ms. Unferdorfer that one of the church members
“accused her of taking her prescription medication” and Mother was now
living in a motel. Id. at 126-27. Ms. Unferdorfer noted that Mother sent the
Children notes and/or colored pictures on six occasions between August 6,
2014 and October 28, 2014. Id. at 132.
Pennsylvania State Trooper Charles Turik, Jr., testified that he
reported to Grove City Hospital to investigate a possible drug overdose by
Mother on February 21, 2014. Id. at 9-10. Marijuana was discovered in
Mother’s purse at the time she was admitted to the hospital. Id. at 10.
Mother’s personal belongings also contained 117 packets of heroin. Id. at
11-12. Trooper Turik explained that drug charges were filed against Mother,
and that she pled guilty to possession of heroin on October 10, 2014. Id. at
12. Trooper Turik indicated that Mother currently is on probation. Id.
Mother testified that she began using drugs when she was only 12 or
13 years old, and that she has attended rehabilitation programs on four
occasions. Id. at 170. Mother admitted that she relapsed most recently in
February of 2014, after she received a payment of $80,000.3 Id. at 156.
Mother specified that her relapse occurred on “the day the check cleared.”
3
Ms. Unferdorfer reported that Mother’s mother passed away, and that the
$80,000 came from a life insurance policy. N.T., 11/20/2014, at 129.
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Id. at 158. Mother indicated that she completed an intensive outpatient
drug treatment program in August of 2014, while she was most recently
incarcerated. Id. at 141-42. Mother also stated that she currently receives
drug and alcohol treatment at Davis Counseling Center, and through a
program called Celebrate Recovery. Id. at 143. However, Mother admitted
that she has only attended one appointment at Davis Counseling Center, and
that she missed her second appointment due to a lack of transportation.4
Id. at 143-44, 164. Mother further testified that she has completed an
anger management program, a parenting program, and a life skills program.
Id. at 145, 151-52. Mother noted that she receives Supplemental Security
Income, and that she leased a new apartment on November 13, 2014. Id.
at 138-40.
Accordingly, our review of the record supports the orphans’ court’s
conclusion that Mother is incapable of parenting the Children, and that her
parental incapacity has left the Children without essential parental care or
control. Additionally, it was reasonable for the court to determine that
Mother will not, or cannot, remedy this incapacity. Since the Children were
placed in foster care, Mother has been incarcerated repeatedly, and she has
been unable to remedy her ongoing drug abuse problem. Most notably,
Mother completed an inpatient drug treatment program at White Deer Run in
4
Mother insisted that she now has remedied this transportation problem by
signing up for the Medical Transportation Assistance Program. N.T.,
11/20/2014, at 144, 147.
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November of 2013, and then relapsed within a few months. While Mother
completed a drug treatment program during her most recent incarceration,
and while she claims that she now intends to receive treatment at Davis
Counseling Center, Mother has failed to demonstrate consistent
improvement. No relief is due.
Next, we consider whether termination was proper under Section
2511(b). The requisite analysis is as follows.
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. 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).
Here, the orphans’ court concluded that it would be in the best
interests of the Children for Mother’s parental rights to be terminated. The
court found that the Children are bonded with the Foster Parents, that they
have no bond with Mother, and that they would not be harmed if Mother’s
parental rights were terminated. Orphans’ Court Opinion, 1/28/2015, at 12-
15. Mother argues that the bonding evaluation conducted in this case was
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inadequate, because the evaluator spent only three hours with Mother and
the Children. Id. at 13.
Again, we conclude that the record supports the orphans’ court’s
decision to terminate Mother’s parental rights. During the termination
hearing, psychologist Carol Patterson testified as an expert in the field of
bonding and attachment. N.T., 11/20/2014, at 22. Ms. Patterson stated
that she performed bonding evaluations with respect to the Children and the
Foster Parents on September 11, 2014, and with respect to the Children and
Mother on October 22, 2014. Id. at 15. Ms. Patterson noted that her
evaluation of Mother consisted of a two-hour observation period with the
Children, followed by a one-hour interview. Id. at 33-34. Ms. Patterson
explained that the Children and the Foster Parents “demonstrated a very
strong bond,” and that E.M.S. referred to the Foster Parents as “mom and
dad.” Id. at 19, 44-45. Ms. Patterson further noted that “it was obvious
that they had been providing [the Children] a very nurturing, consistent
environment and the girls seemed to be functioning very well.” Id. at 19-
20. In contrast, Ms. Patterson reported that the Children “seem to have
very little recognition that [Mother] was indeed their biological mother,” that
D.J.S. was “almost fearful initially” during the evaluation, and that E.M.S.
“presented as very wary.” Id. at 23. Ms. Patterson observed that the
Children “had negative responses to virtually all of [Mother’s] actions toward
them.” Id. at 24. Ms. Patterson noted that E.M.S. kissed Mother and told
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her that she loved her, but only after being asked to do so. Id. at 36-37.
Ms. Patterson testified that the Children do not have a bond with Mother,
and that they would not be harmed if Mother’s parental rights were
terminated. Id. at 29, 39, 45.
Ms. Sacha Martin testified that she is a licensed marriage and family
therapist. Id. at 70. Ms. Martin explained that she has provided therapy to
E.M.S. since 2013, though she did not recall the exact date. Id. at 71-72,
77, 81, 84-85. Ms. Martin first began working with E.M.S. because “she was
exhibiting a variety of mental health problems” and engaging in “self-
mutilative acts.” Id. at 72. Ms. Martin noted that “when there were
visitation[s] with biological parents, … the frequency of those acts would
increase around that visit.” Id. at 74. These acts finally decreased in May
of 2014, after E.M.S. stopped visiting with her parents. Id. at 73-75.5 Ms.
Martin testified that, during the weekend following the bonding evaluation on
October 22, 2014, she received a phone call from the foster mother, D.S.,
indicating that there had been an increase in inappropriate behaviors by
E.M.S. and requesting an emergency therapy session. Id. at 79. These
inappropriate behaviors included “destroy[ing] … a pool fence” and “kicking
5
On or about May 28, 2014, WCCB filed motions requesting that visits
between the Children and their parents be suspended. WCCB relied on
letters drafted by Ms. Anne Hall, in which she recommended that visits cease
due to “the severity of [E.M.S.’s] behavior reactions ….” Letter, 5/19/2014,
at 2 (unnumbered pages). The certified record contains temporary orders
dated May 28, 2014, which suspended the Children’s visits with Mother and
Father.
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bedroom furniture and walls[.]” Id. at 80-81. During the emergency
session, E.M.S. displayed anger and confusion in relation to the bonding
assessment, and referred to Mother as “that lady.” Id. at 79-80. Ms. Martin
reported that E.M.S.’s inappropriate behaviors have again decreased. Id. at
80.
Ms. Unferdorfer testified that the Children are doing “very well” in
foster care, and that they call the Foster Parents “[m]om and dad.” Id. at
129-30. She opined that the Children should be adopted, and that they
would not suffer any harm if Mother’s parental rights were terminated. Id.
at 130. Ms. Nowlin also opined that the Children should be adopted. Id. at
100. She noted that the Foster Parents are “the only parents that [D.J.S.]
has ever known,” and that, with respect to E.M.S., the “foster home is leaps
and bounds from her home of origin ….” Id.
Finally, Mother testified that “I love my children and I know my
children love me.” Id. at 153. Mother also insisted that she and the
Children “can have a bond.” Id. Mother claimed that one of the Children
“called me mom back in January before my visits ended, and all she wanted
me to do when I saw her was hold her.” Id. at 172.
Thus, the evidence supports the orphans’ court’s determination that it
would be in the Children’s best interest if Mother’s parental rights were
terminated. The Children are bonded with the Foster Parents, and they are
doing well in foster care. In contrast, the record establishes that the
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Children have no bond with Mother. While Mother complains that the
bonding evaluation in this case lasted only three hours, it is clear that, under
the facts of instant case, Ms. Patterson had sufficient time to observe the
Children’s interactions with Mother, and to conclude that they had little, if
any, affection for her. Further, while Mother insists that she loves the
Children, it is well-settled that “[a] parent’s own feelings of love and
affection for a child, alone, do not prevent termination of parental rights.”
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citation omitted).
Mother is not entitled to relief.6
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Mother’s parental rights
pursuant to Sections 2511(a)(2) and (b), we affirm the order of the orphans’
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
6
In her brief, Mother compares this case to In re C.P., 901 A.2d 516 (Pa.
Super. 2006). We note that C.P. is distinguishable from the instant matter,
as, in that case, the trial court was not presented with any testimony
concerning the impact that terminating the appellant’s parental rights would
have on the child. Id. at 521-23.
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Date: 5/22/2015
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