J-S29045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
G.S. and J.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
E.J.T.,
Appellant No. 177 WDA 2015
Appeal from the Order Entered December 29, 2014,
in the Court of Common Pleas of Somerset County,
Orphans’ Court, at No(s): Case #13 Adoption 2014
BEFORE: PANELLA, MUNDY, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 24, 2015
E.J.T. (Mother) appeals from the order entered December 29, 2014, in
the Court of Common Pleas of Somerset County, which terminated
involuntarily her parental rights to her minor son, G.M.T. (Child).1 We
affirm.
Child was born in October of 2007. In June of 2008, Mother was
incarcerated, and she placed Child in the care of his great-aunt, J.S. (Great-
Aunt), and his great-uncle, G.S. (Great-Uncle) (collectively Appellees).
Mother was released after 90 days, but again was incarcerated from January
of 2009 until January of 2011, during which time Child continued to reside
*
Retired Senior Judge specially assigned to the Superior Court.
1
The orphans’ court entered an order terminating the parental rights of
Child’s father, K.A. (Father), that same day. Father is not a party to the
instant appeal.
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with Great-Aunt and Great-Uncle. After Mother was released, Great-Aunt
and Great-Uncle attempted to transfer Child back into Mother’s custody.
However, Mother relapsed into drug addiction in November of 2012, and was
incarcerated once more in December of 2012.
On July 23, 2014, Great-Aunt and Great-Uncle filed a petition to
terminate Mother’s parental rights to Child involuntarily, along with a report
of intention to adopt Child. A termination hearing was held on December 11,
2014. On December 29, 2014, the orphans’ court entered its order
terminating Mother’s rights. Mother timely filed a notice of appeal.2
Mother now raises the following issue for our review. “Whether the
[orphans’] court erred by terminating the natural mother[’]s parental rights
2
Mother was represented by counsel during her termination hearing, but
filed her notice of appeal pro se. The certified record does not contain an
order permitting Mother’s trial counsel to withdraw. On January 20, 2015,
Mother filed an application for assignment of counsel, requesting that an
attorney be appointed to represent her on appeal. The orphans’ court
appointed Mother’s present counsel on January 23, 2015.
Additionally, Mother did not file a concise statement of errors
complained of on appeal at the same time as her notice of appeal, as
required by Pa.R.A.P. 1925(a)(2)(i). The orphans’ court did not order
Mother to file a concise statement, but instead “reviewed a letter from
[Mother] to the Public Defender’s Office,” which is not contained in the
certified record, and tried to address the complaints Mother raised therein.
Orphans’ Court Opinion, 2/9/2015, at 1 (unnumbered pages). This Court
also did not order Mother to file a concise statement. Because Appellees
have not objected or claimed any prejudice as a result of Mother’s failure to
file a concise statement, 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).
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under 23 Pa.C.S.[] §[]2511 (a)(1), 23 Pa.C.S.[] §[]2511 (a)(2), and 23
Pa.C.S.[] §[]2511 (b).” Mother’s brief at 1.
We consider Mother’s claim mindful of the following.
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).
Our courts apply a two-part analysis in reviewing a decree terminating
parental rights. As we explained in In re L.M., 923 A.2d 505 (Pa. Super.
2007),
[i]nitially, 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.
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Id. at 511 (citations omitted).
In this case, the orphans’ court terminated Mother’s parental rights
pursuant to 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 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
finding grounds for terminating Mother’s parental rights pursuant to Section
2511(a)(2).
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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). “[A] parent’s incarceration is relevant to the
section (a)(2) analysis and, depending on the circumstances of the case, it
may be dispositive of a parent’s ability to provide the ‘essential parental
care, control or subsistence’ that the section contemplates.” In re A.D., 93
A.3d 888, 897 (Pa. Super. 2014) (discussing In re Adoption of S.P., 47
A.3d 817 (Pa. 2012)).
Instantly, the orphans’ court concluded that Mother is incapable of
parenting Child, and that Mother’s parental incapacity will continue
indefinitely. Orphans’ Court Opinion, 12/29/2014, 9 (unnumbered pages).
The court emphasized Mother’s failure to care for Child for the majority of
his life, and the possibility that Mother may again relapse into drug
addiction. Id. Mother argues that she soon will be out of prison, and that
“her incapacity … will no longer be a factor.” Mother’s brief at 17, 20.
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Mother highlights her efforts at maintaining a relationship with Child while
incarcerated, and the fact that she placed Child with Great-Aunt and Great-
Uncle. Id. at 17, 19. According to Mother, section 2511(a)(2) is
inapplicable in the instant matter, because Child is receiving proper parental
care, control, and subsistence from Great-Aunt and Great-Uncle, and
because she assisted Great-Aunt and Great-Uncle by allowing them to
withdraw money from a savings account to help provide for Child.3 Id. at
17-20.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by findings grounds for
terminating Mother’s parental rights under section 2511(a)(2). During the
termination hearing, Great-Aunt testified that Mother appeared to be making
progress following her release from incarceration in January of 2011. N.T.,
12/19/2014, at 26-27. Mother was able to find a job and was “going to the
methadone plan,” and Child was spending two nights per week with Mother.
Id. at 27. However, in November of 2012, Mother began to attend
treatment at the Twin Lakes rehabilitation facility. Id. at 22-23. Great-Aunt
explained that Mother left the facility, and violated her probation. Id. at 28.
Mother then overdosed while incarcerated at the Somerset County Jail, and
faced additional criminal charges as a result. Id. at 28-29.
3
Mother devotes a significant portion of her brief to discussing the evidence
in this matter in relation to Section 2511(a)(1). However, as noted supra,
Mother’s parental rights were terminated under Section 2511(a)(2) only.
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Mother testified that she has been a drug addict for about 10 years,
since she was 16 years old, and that her drug of choice is heroin. Id. at 78-
79. Mother claimed that, after her release in 2011, she “came to see [Child]
and visit him as much as I could ….” Id. at 51. According to Mother, Child
“was with me … between four and five[] days a week” from April of 2011,
until Mother relapsed in November of 2012. Id. at 52-53, 56-57. Mother
also stated that Child was with her “at least five days a week.” Id. at 57.
Mother explained that she most recently was incarcerated on December 7,
2012, that she currently is serving two concurrent 2½-5 year sentences of
incarceration, and that her minimum sentence date is in April of 2015. Id.
at 54, 77. Mother was not sure what her maximum sentence date is, but
she believed it to be in 2016. Id. at 77-78. Mother noted that her
incarceration will be followed by a special probation sentence with a
maximum sentence date in 2026.4 Id. at 77.
Mother further testified that she is attending drug treatment while
incarcerated, and that she is “getting ready to start the motivational boot
camp which is something I’ve never ever done before, and that will also give
me the opportunity to be able to be home sooner but start out in a …
different town ….” Id. at 76, 90. Mother hoped to be “back out on the
4
Mother noted that, during her current incarceration, she has allowed Great-
Aunt to withdraw money from a savings account in order to buy things for
Child. N.T., 12/11/2014, at 66 (“[I]f he needed a bike or something like
that, she would take the money from my savings account and get him a
bike.”).
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street” by Thanksgiving of 2015. Id. at 80. However, Mother conceded that
“it will take a while” until she is able to take care of Child. Id. at 71. She
noted that “it’s going to be hard to get a job with my criminal record, … but
it’s been done, and I can do it.” Id. at 90.
Accordingly, the record supports the finding of the orphans’ court that
Mother’s parental incapacity has caused Child to be without essential
parental care, control, or subsistence, and that Mother cannot, or will not,
remedy this incapacity. Mother is incarcerated, and it is not clear when, if
ever, Mother will be able to care for Child. While Mother contends that her
parental incapacity will be remedied when she is released from incarceration,
Mother’s argument fails to address the underlying cause of her
incarcerations. Specifically, Mother has a lengthy history of drug addiction
that she has been unable to remedy. It was reasonable for the court to
conclude that Mother may again relapse. In the event of a relapse, there is
a considerable risk, if not a likelihood, that Mother will be sentenced to
another period of incarceration.
We also reject Mother’s contention that she provided Child with
parental care, control, or subsistence by placing Child in the care of Great-
Aunt and Great-Uncle, and by allowing Great-Aunt and Great-Uncle to use
money from her savings account. Tellingly, Mother cites no authority for the
proposition that these actions are sufficient to avoid termination under
Section 2511(a)(2). To the contrary, this Court has emphasized that
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“‘[p]arental rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while others
provide the child with his or her physical and emotional needs.’” In re
E.A.P., 944 A.2d 79, 83 (Pa. Super. 2008) (quoting In re B.,N.M., 856 A.2d
847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005)). No
relief is due.
We next consider whether the trial court abused its discretion by
findings that section 2511(b) supports termination. We have discussed our
analysis under section 2511(b) as follows.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. 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. 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.
[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.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
Here, the orphans’ court found that it would meet the needs and
welfare of Child to remain in the care of Great-Aunt and Great-Uncle, where
Child is thriving. Orphans’ Court Opinion, 12/29/2014, at 10 (unnumbered
pages). The court further concluded that there was “no evidence to support
an argument that there is a sufficient parent-child bond between Mother and
the Child such that [] he would be harmed by a severance of the parental
relationship.” Id. Mother contends that she has a bond with Child and, if
this bond is severed, “the damage that will be caused will have some effect
in the child’s life.” Mother’s brief at 22-23. Mother argues that it would be
best to leave Child in the care of Great-Aunt and Great-Uncle until she is
able to remedy her parental incapacity. Id.
Again, we conclude that Mother is not entitled to relief. Great-Aunt
testified that she and Great-Uncle are caring for Child and providing for his
needs, that Child is doing well in school, and that he is “very happy.” N.T.,
12/11/2014, at 34-37, 40-41, 44-45, 110-11. Great-Aunt and Great-Uncle
have never described themselves to Child as his mother and father, and
Child usually refers to them by their first names. Id. at 21, 35, 102.
However, Child sometimes refers to Great-Aunt and Great-Uncle as his
“mom” and “dad” while speaking to his friends. Id. at 35-36. Great-Aunt
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explained that Child knows Mother is his mother and refers to her as “mom,”
and that Child sometimes talks about Mother, but “[n]ot a whole lot.” Id. at
20, 22, 37, 102.
Great-Aunt further stated that Mother writes to Child, sends him cards,
and calls him on the phone. Id. at 22, 31-32, 35, 99. When Mother calls
Child, Child will be excited to talk to Mother, but will only be interested in
speaking with her for short periods of time. Id. at 42, 102. Sometimes,
Great-Aunt will show Child a card Mother sent him, and Child will be
uninterested. Id. at 102. Great-Aunt indicated that it has been “over a
year” since Child has asked when Mother is coming home. Id. at 113. Both
Great-Aunt and Great-Uncle testified that Mother and Child had a “good”
relationship prior to Mother most recent incarceration. Id. at 93, 126.
However, Great-Uncle explained that he recently tried to speak to Child
about Mother and that “I could tell it upset him, and … he didn’t want to
hear about it.” Id. at 127.
Mother agreed that she calls Child on the phone and sends him letters
and pictures while incarcerated. Id. at 65-66. Mother also stated that she
had a friend mail toys to Child. Id. at 66. Mother explained that,
sometimes, Child “doesn’t really want to talk much” on the phone, and that,
other times, Child will be “really excited to tell me what was going on.” Id.
at 67. Mother stated that she and Child became “really close” during the
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time Mother last was out of jail, and that she wants to “continue building the
relationship that I have with my son.” Id. at 68, 75.
Mother’s mother (Maternal Grandmother) testified that Mother and
Child spent “a lot of time together” prior to Mother’s most recent
incarceration, that they “get along perfectly,” and that they “mean
everything to each other.” Id. at 150. However, Maternal Grandmother
admitted that there are times when Child “doesn’t want to talk” when Mother
calls him on the phone, “[s]o he’ll say hi, bye, and that’s pretty much it.
Then there’s other times where he’ll talk the whole 20 minutes that she can,
you know, talk. And … he’ll say, hey, call me back. So she would hang up
and call back again.” Id. at 155. Maternal Grandmother stated that Child
“definitely” recognizes Mother as his Mother, that Child loves Mother, and
that Child talks about Mother “[s]ometimes.” Id. at 155, 158.
Thus, the record supports the finding of the orphans’ court that Child is
thriving in the care of Great-Aunt and Great-Uncle, who have cared for Child
for most of his life, and that it would serve the needs and welfare of Child to
be adopted. While Child maintains a relationship with Mother, this
relationship has been limited by the circumstances of Mother’s incarceration.
Further, under the facts of the instant case, it is clear that any benefits that
Child’s relationship with Mother might provide are outweighed by Mother’s
parental incapacity, and by Child’s need for permanence and stability. See
C.D.R., 111 A.3d at 1220 (concluding that the appellant mother’s bond with
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C.D.R was outweighed by the mother’s “repeated failure to remedy her
parental incapacity,” and by C.D.R.’s need for permanence and stability).
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by terminating Mother’s parental rights to Child
involuntarily, we affirm the order of the orphans’ court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2015
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