In Re: Adoption of D.S., a Minor

J-S60016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF D.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: J.S.-G.
No. 931 EDA 2015

Appeal from the Order Entered November 6, 2014
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 16-2014-AD

*****

IN RE: ADOPTION OF B.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: J.S.-G.
No. 932 EDA 2015

Appeal from the Order Entered November 6, 2014
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 15-2014-AD

*****

IN RE: ADOPTION OF J.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: J.S.-G., MOTHER
No. 993 EDA 2015

Appeal from the Order Entered November 6, 2014
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 17-2014-AD

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
J-S60016-15

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 16, 2015

J.S.-G. (Mother) appeals from the order of the Court of Common Pleas

of Wayne County that granted involuntary termination of her parental rights

as to her children, J.C. (born May 2001), D.S. (born August 2002), and B.C

(born September 2006). After careful review, we affirm.

The trial court stated the facts of this matter as follows:

Mother is currently incarcerated at the Pike County Correctional
Facility. The natural father of the children, R.C., intends to
voluntarily terminate his parental rights as to all three children.
D.S., J.C., and B.C. have resided in [their intended adoptive
parents’] household since January 2013.

In 2008, D.S., J.C., and B.C. were placed through Wayne County
Children and Youth Services in the home of [B.H. and R.M., their
intended adoptive parents]; in approximately March 2010, the
children were returned to [Mother]. Prior to January 2013, the
children believed that [B.H.] and [R.M.] were their aunt and
uncle, respectively.

In January 2013, [Mother] gave custody of all three children to
[B.H.] and [R.M.] following an incident of domestic violence
between [Mother] and her spouse; the children have remained in
the H./M. household since that time. Also in January 2013,
[B.H.] and [R.M.] filed an Emergency Petition for Custody; the
[c]ourt granted temporary physical and legal custody of all three
children to [B.H.] and [R.M.].

[Mother] last saw her children on April 15, 2014, at a supervised
visit. Following the supervised visit[, Mother] was arrested for
violating her parole due to failing to appear. Since April 15,
2014, [Mother] has been incarcerated for all but eleven days.
[Mother] did not inform her children that she was not
incarcerated for eleven days because she knew she was going to
be sentenced on another charge.

[Mother] was sentenced in Wayne County [in] June 2013 and
was incarcerated from June 2013 until sometime in September
2013. [Mother] pled guilty and was sentenced in Pike County in
May 2014. In August 2014, [Mother] was sentenced on a new

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criminal charge of retail theft in Wayne County. In August 2014,
[Mother] was sentenced in Pike County on her parole violation.
In October 2014, [Mother] was sentenced in Pike County on two
new criminal charges. [Mother’s] aggregate sentence is not less
than 24 months nor more than 60 months. [Mother’s] best case
scenario is to be released on August 7, 2016.

Over the last six months, [Mother] has attempted to contact her
children by telephone and letter. [Mother] was represented by
counsel in the custody case against [B.H.] and [R.M.]; [Mother]
entered into a stipulation in the custody case which allowed her
to have supervised contact with the minor children. [Mother’s]
supervised visitation was supervised by Father Erb at the
Episcopal Church in Honesdale, [Pennsylvania]. [Mother] stated
that while she was incarcerated she tried to call her children and
[B.H.] would say hello and then hang up.

Trial Court Opinion, 11/6/14, at 1-3 (numbering omitted).

B.H. and R.M. petitioned the trial court to terminate Mother’s parental

rights pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2),1 and (b). A hearing was

____________________________________________

1
Section 2511(a) of the Adoption Act provides, in relevant part:

(a) General rule. – The rights of a parent in regard to a child may be
terminated after a petition is filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six
months immediately preceding the filing of the petition either has
evidenced a settled purpose of relinquishing parental claim to a child
or has refused or failed to perform parental duties;

(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;

23 Pa.C.S. § 2511(a).

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held on October 6, 2014. The trial court entered a final decree terminating

Mother’s parental rights to the children on November 6, 2014. Mother

subsequently filed timely appeals,2 which have been consolidated for our

review.

On appeal, Mother raises the following issues:

1. Whether the court erred in concluding that [B.H. and R.M.]
established, by clear and convincing evidence, the elements
required to involuntarily terminate [Mother’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1).

2. Whether the court erred in concluding that [B.H. and R.M.]
established, by clear and convincing evidence, the elements
required to involuntarily terminate [Mother’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2).

3. Whether the court erred in finding that the best interest of
the children would be served by granting the termination
pursuant to 23 Pa.C.S.A. § 2511(b).

Brief of Appellant, at 4.

It is well established that:

In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. The standard of clear and convincing evidence is
defined as testimony that is so “clear, direct, weighty and
convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in
issue.” It is well established that a court must examine the
____________________________________________

2
We note that though timely notices of appeal were filed, the trial court
provided the certified record well beyond its due date. Additionally, Mother
and Appellees B.H. and R.M. each requested and received briefing
extensions. As a result, this matter’s panel listing has been delayed for
multiple months.

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individual circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence
in light of the totality of the circumstances clearly warrants
termination.

In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party

seeking termination of parental rights bears burden of proving by clear and

convincing evidence that at least one of eight grounds for termination under

23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs

and welfare of child as set forth in 23 Pa.C.S. § 2511(b)).

Pursuant to section 2511(a)(1), parental rights may be terminated

based upon relinquishment or failure to perform parental duties in the six

months prior to the filing of the termination petition. However,

[a]lthough it is the six months immediately preceding the filing
of the petition that is most critical to the analysis, the court must
consider the whole history of a given case and not mechanically
apply the six-month statutory provision. The court must
examine the individual circumstances of each case and consider
all explanations offered by the parent facing termination of his
parental rights, to determine if the evidence, in light of the
totality of the circumstances, clearly warrants the involuntary
termination.

In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008) (citations and quotation

marks omitted). As to section 2511(a)(2), the party seeking involuntary

termination must prove: “(1) repeated and continued incapacity, abuse,

neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused

the child to be without essential parental care, control or subsistence; and

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(3) that the causes of the incapacity, abuse, neglect or refusal cannot or will

not be remedied.” Id.

We review a trial court’s decision to involuntarily terminate parental

rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,

563 (Pa. Super. 2003). Our scope of review is limited to determining

whether the trial court’s order or decree is supported by competent

evidence. Id.

Instantly, Mother argues that B.H. and R.M. failed to present clear and

convincing evidence of grounds for termination pursuant to sections

2511(a)(1) and (2). In support of her position, Mother asserts that she was

permitted to have and did have supervised contact with her children up until

April 15, 2014, when she was detained by the probation department. While

incarcerated, Mother sought to have contact with her children through

letters and telephone calls. Despite being currently incarcerated, Mother

argues that

she had made substantial strides in having contact with the
children prior to April 15, 2014, and was making efforts to be
involved in the lives of the minor children. . . . [S]he anticipates
a release date in August 2016. At that time, her home plan
would involve acting as a parent for the children.

Brief of Appellant, at 13.

The trial court determined that Mother had not deliberately decided to

terminate her relationship with the children since she attempted to maintain

contact through telephone calls and letters. However, simply attempting to

speak with her children via telephone falls far short of Mother demonstrating

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an ability to parent. Indeed, the trial court found that Mother failed to

perform any parental duties during the six months prior to the filing of the

termination petitions, including that she failed to arrange visitation, did not

provide any monetary support, food, or clothing, and failed to obtain court-

ordered reunification counseling.

Although Mother was incarcerated for much of the six-month period

before the termination petitions were filed, the record reveals that B.H. and

R.M. have been solely responsible for performing parental duties for the

children since January 2013. Mother had supervised visits with the children,

but she did not take any action to enforce visitation while incarcerated and

she makes no claim that she assumed any other parenting duties since

January 2013. Additionally, the children resided with and were cared for by

B.H. and R.M. for approximately two years from 2008 to 2010. Thus, when

considering the whole history of this case, Mother’s failure to perform

parental duties over the relevant six-month period and throughout the

children’s lives indicates that involuntary termination is warranted pursuant

to section 2511(a)(1). K.Z.S., supra.

Clearly, Mother’s incarceration is a significant factor in this matter, and

it is properly considered as relevant to termination under section

2511(a)(2). Our Supreme Court has held that:

Incarceration, while not a litmus test for termination, can be
determinative of the question of whether a parent is providing
‘essential parental care, comfort or subsistence’ and the length
of the remaining confinement can be considered highly relevant
to whether ‘the conditions and causes of the incapacity, abuse,

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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). Moreover, regarding

termination pursuant to section 2511(a)(2), “parents are required to make

diligent efforts toward the reasonably prompt assumption of full parental

responsibilities. A parent’s vow to cooperate, after a long period of

uncooperativeness[,] . . . may properly be rejected as untimely or

disingenuous.” K.Z.S., supra at 758 (citation omitted).

Instantly, Mother has exhibited a continued incapacity to parent her

children. Mother was incarcerated from June 2013 through September

2013. She has been incarcerated again since April 2014, except for one

eleven-day period, and she will remain incarcerated at least until August

2016. Moreover, “[d]uring the eleven days she was not incarcerated,

[Mother] committed another crime; however, she chose not to have any

contact with her children during that time.” Trial Court Opinion, 11/6/14, at

7. It is undisputed that Mother’s choices and her incarceration at various

periods over the course of her children’s lives have left her children without

essential parental care.

The record further reveals that Mother does not have the will or ability

to remedy her incapacity to parent. Her commission of a crime and failure

to take on any parental responsibility during her eleven days of freedom

demonstrates this. Mother testified that she is taking all of the programs

she can while incarcerated and that she finally realizes that what she has

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done is wrong. However, Mother’s claims of her ability to change are not

only untimely, but are belied by her actions. K.Z.S., supra. Ultimately, we

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

to a parent’s claims of progress and hope for the future.” In re Adoption

of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

We next turn to section 2511(b), which requires a determination

regarding whether termination best serves the developmental, physical, and

emotional needs and welfare of the child.

Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of a 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, . . . 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.

In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012) (citations omitted).

Here, the record indicates that the parent-child bond between Mother

and her children is weak and does not benefit the children. B.H. testified

that Mother made promises to the children during telephone conversations,

indicating Mother would get a job, move to Long Island or Florida, and never

go back to jail. As the trial court noted, these unfulfilled promises have had

a “detrimental effect on the children, especially D.S. who is unable to

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understand that these promises were not reality.3 The children, in particular

D.S., have difficulty in reconciling [Mother’s] promises with the fact that

[Mother] continues to commit criminal offenses and continues to be

incarcerated.” Trial Court Opinion, 11/6/14, at 9.

The children have expressed their desire for stability, which B.H. and

R.M. have provided. The children have established a strong bond with B.H.

and R.M. and have indicated they would like to continue living with them.

Out of the three children, D.S. has indicated a desire not to lose contact with

his mother, but he also acknowledges that B.H. and R.M. care for him,

provide him with a stable home, and that he loves them.

Accordingly, we find that the relationship between Mother and the

children can be severed without detrimental effects and that it is in the

children’s best interests that Mother’s parental rights be terminated. K.M.,

supra.

Order affirmed.

____________________________________________

3
D.S. has autism, and therefore has had greater difficulty than his siblings
in understanding that Mother’s promises have been disingenuous.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/16/2015

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