In Re: Adoption of: E.P., III

J-A30007-15 & J-A30008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: E.P., III IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: A.M., MOTHER

No. 1293 EDA 2015

Appeal from the Order Entered March 31, 2015
In the Court of Common Pleas of Delaware County
Orphans’ Court at No(s): 0093-2013

IN RE: ADOPTION OF: E.P., III IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: E.P., JR., FATHER

No. 1247 EDA 2015

Appeal from the Order Entered March 31, 2015
In the Court of Common Pleas of Delaware County
Orphans’ Court at No(s): 0093-2013

BEFORE: GANTMAN, P.J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 08, 2015

____________________________________________

*
Former Justice specially assigned to the Superior Court.
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Appellants, A.M. (Mother) and E.P., Jr., (Father) appeal from the

March 31, 2015 orders involuntarily terminating their parental rights to their

son, E.P., III, (Child).1 After careful review, we affirm.

The orphans’ court set forth detailed and extensive findings of fact in

conjunction with the March 31, 2015 orders entered in this matter. See

Orphans’ Court Opinion, 3/31/15, at Findings of Fact #39-298. We

summarize the pertinent findings of fact as follows. E.P., III was born in

December 2011, with methadone in his system. Orphans’ Court Opinion,

3/31/15, at Finding of Fact #54. E.P., III suffered from drug withdrawal,

and, as a result, he remained in the hospital for treatment until February 17,

2012.2 Id. at #88(e), 95. Upon discharge, E.P., III was placed in foster

care. Id. at #95. He was adjudicated dependent on April 3, 2012. Id. at

#130. E.P., III has remained with the same foster parents during his entire

dependency. Id. at #276. They are an adoptive resource, and E.P., III is

thriving in their care. Id. at #277, 280.

The record reveals that Mother has struggled with drug addiction since

at least 2009, when her oldest daughter tested positive for benzodiazepines
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1
This Court hereby consolidates these appeals sua sponte. See generally
Pa.R.A.P. 513.
2
At the time of E.P., III’s birth, through his discharge from the hospital,
Mother and Father resided in the home of E.P., Sr., (Paternal Grandfather)
and D.P. (Step-Grandmother). Orphans’ Court Opinion, 3/31/15, at Finding
of Fact # 44.

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and marijuana at birth. Id. at #159. In 2010, Mother gave birth to another

daughter, who tested positive for cocaine at birth.3 Id. at #160. Mother

testified that, at the time she learned of her pregnancy with E.P., III, she

was taking suboxone, which she purchased illegally “off the street.” Id. at

#47, 54(a). By the time of E.P., III’s birth, Mother was taking prescribed

methadone. Id. at #48. During E.P., III’s life, Mother enrolled in substance

abuse programs, but she never completed any program. Id. at #162.

At the time of E.P., III’s adjudication, Mother was on probation for the

crime of retail theft. N.T., 2/11/15, at 125-126. She was arrested during

E.P., III’s adjudication hearing on April 3, 2012, due to a bench warrant that

was issued for the probation violation of failure to report. Id. Mother was

incarcerated until July 29, 2012, during which E.P., III, then no more than

seven months old, visited her three times. Id. at 32, 126. In May 2013,

Mother was incarcerated again for a new probation violation based on

conduct similar to that which precipitated the 2012 revocation. Id. at 127.

She remained incarcerated until August 8, 2013, during which she did not

request visits with E.P., III. Id. at 128. Mother was incarcerated again in

January 2014, for a period of time unspecified in the record. Id. at 21-22.

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3
Father is the natural parent of both female children. At the time of the
subject proceedings, Paternal Grandfather and Step-Grandmother had legal
and physical custody of the female children. Orphans’ Court Opinion,
3/31/15, at Finding of Fact #70.

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Mother acknowledged that, when not incarcerated, she did not

regularly attend visits with E.P., III. N.T., 2/11/15, at 132. From August

2012, to February 2013, Mother attended six out of fourteen scheduled visits

with E.P., III. Orphans’ Court Opinion, 3/31/15, at Finding of Fact #182.

From March 2013 to July 2013, Mother attended none of the eleven

scheduled visits with E.P., III, although she was incarcerated again in May

2013. Id. at #183. From August 2013 to March 2014, Mother attended

none of the 17 scheduled visits with E.P., III. Id. at #184. From April

2014 to June 2014, Mother attended one of seven scheduled visits with E.P.,

III. Id. at #185.

With respect to Father, the record reveals that he was incarcerated

several days after E.P., III’s placement in February 2012. Id. at #101.

Father remained incarcerated until May 2013. Id. at #204. Father never

contacted E.P., III by letters, cards, or gifts while incarcerated. Id. at #216.

Following his release from prison, Father did not contact CYS until October

2013, at which time he discussed his support of E.P., III’s adoption by

alleged paternal relatives, R.B. and J.M., husband and wife. Id. at #207,

212. Father has never visited with E.P., III even though visits were

scheduled, and notices of the visits were sent by letter to him. Id. at #213-

214.

On August 14, 2013, the Delaware County Children and Youth Services

(CYS) filed petitions for the involuntary termination of Mother’s and Father’s

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parental rights to E.P., III pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

(8), and (b).4 A hearing on the petitions occurred on February 11, 2015,

during which CYS presented the testimony of its caseworker, Sara English.

In addition, CYS admitted into evidence transcripts from the hearings on

September 23, 2014, October 2, 2014, November 20, 2014, and December

11, 2014.5 See N.T., 2/11/15, at 10-14. Mother testified on her own

behalf. Father did not appear for the termination hearing, although his

counsel participated.

On March 31, 2015, the orphans’ court granted CYS’s petitions for the

involuntary termination of Mother’s and Father’s parental rights to E.P., III.

On April 28, 2015, Mother and Father timely filed separate notices of

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4
The orphans’ court found that, on October 7, 2013, CYS learned that R.B.
and J.M. were interested in adopting E.P., III when M.P., Child’s paternal
great-uncle, told CYS that his son-in-law’s uncle was interested in adopting a
child. Orphans’ Court Opinion, 5/28/15, at 26. It is unclear from the record
how, if at all, R.B. and J.M. are related to E.P., III.

Thereafter, prior to the termination hearing, on March 17, 2014, Father
executed a consent to adoption. On March 28, 2014, Mother executed a
consent to adoption. Mother and Father executed the consents to adoption
in anticipation of R.B. and J.M. adopting E.P., III. On May 7, 2014, R.B. and
J.M. filed a petition for adoption and a petition to confirm consents to
adoption. As discussed supra, following hearings, on January 16, 2015, the
orphans’ court denied the petitions filed by R.B. and J.M.
5
The hearings were on the petition for adoption and the petition to confirm
consents to adoption, filed by R.B. and J.M.

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appeal.6 On May 28, 2015, the orphans’ court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

On appeal, Mother presents the following issues for our review.

1. Whether the [orphans’] court erred and/or abused
its discretion in finding that CYS met its burden of
proof by clear and convincing evidence that the
parental rights of [M]other should be terminated
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8)?

2. Whether the [orphans’] court erred and/or abused
its discretion in finding that CYS met its burden of
proof by clear and convincing evidence that it
provided reasonable services to [M]other sufficient to
timely reunify [M]other with her child?

3. Whether the [orphans’] court erred and/or abused
its discretion in finding that CYS met its burden of
proof by clear and convincing evidence that
terminating the parental rights of [M]other would

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6
Mother and Father did not file concise statements of errors complained of
on appeal concurrently with their notices of appeal in contravention of
Pa.R.A.P. 1925(a)(2)(i) and (b). By orders dated April 28, 2015, and April
30, 2015, the orphans’ court directed Father and Mother, respectively, to file
concise statements within 21 days. By orders dated May 7, 2015, the
orphans’ court amended its previous orders by directing Mother and Father
to file concise statements by May 11, 2015, and the parties complied.
Because no party claims prejudice as a result of Mother’s and Father’s
procedural violation, we will not quash or dismiss their appeals. See In re
K.T.E.L., 983 A.2d 745 (Pa. Super. 2009); Cf. J.P. v. S.P., 991 A.2d 904,
908 (Pa. Super. 2010) (holding that appellant waived all issues by failing to
file a concise statement of errors complained of on appeal when directed by
the trial court).

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best meet the needs and welfare of the child
pursuant to 23 Pa.C.S.A. § 2511(b)?

4. Whether the [orphans’] [c]ourt erred in not
dismissing [CYS’s] [p]etition to [t]erminate the
parental [r]ights of [M]other for failing to be carried
out promptly in accordance with Pa.R.C.P. 1915.4
and [Pa.O.C.R.] 15.4-15.6?

5. Whether the [orphans’] court erred and/or abused
its discretion in overruling [Mother]’s [o]bjections as
to hearsay regarding the submission of Dr. Madero’s
reports without Dr. Madero testifying, and thus not
allowing [Mother] the opportunity to cross[-]examine
Dr. Madero regarding her opinions?

6. Whether the [orphans’] court erred and/or abused
its discretion in putting the burden on the mother to
subpoena or call as a witness the CYS’ expert, Dr.
Madero[,] to testify?

7. Whether the [orphans’] court erred and/or abused
its discretion by failing to assess the credibility of
[J.M] and [R.B.] before coming to the [c]ourt’s
determination to terminate parental rights?

8. Whether despite 23 Pa.C.S.A. § 2511(b), [M]other
was incorrectly precluded from producing any
remedial evidence following the filing of the
[p]etition for [i]nvoluntary [t]ermination of
[p]arental rights that was filed pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8)?

9. Whether the [orphans’] court’s decision to
terminate the [p]arental rights of [M]other was not
in the best interest of the Child?

10. Whether the [orphans’] court erred and/or
abused its discretion in coming to the conclusion that
CYS met its burden under the Kinship Car[e] Act?

11. Whether the [orphans’] court erred and/or
abused its discretion in finding that CYS met its
burden of proof by clear and convincing evidence

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that it provided reasonable services to [M]other
when CYS[’s] goal all along was not to reunify
[M]other with [C]hild, but was to place [C]hild with a
foster parent that CYS wanted to adopt [C]hild?

12. Whether the [orphans’] court erred and/or
abused its discretion in denying [R.B.] and [J.M.]’s
[p]etition to confirm [c]onsent of the biological
parents to the adoption of [C]hild?

13. Whether the [orphans’] court erred and/or
abused its discretion in finding that CYS had the
basis to remove [C]hild from [M]other’s custody?

Mother’s Brief at 4-5.7

On appeal, Father presents the following issues for our review.

I. Whether the [orphans’] court erred in terminating
parental rights of [Father], based on the lack of clear
and convincing evidence and failure to consider
factors going to the best interest of the child[?]

II. Whether the [orphans’] court erred in determining
that [CYS] met the criteria of the Kinship Care
Program Act pursuant to 62 P.S. [§] 1303[?]

III. Whether the [orphans’] court erred in not
accepting [ ] [F]ather’s consent to voluntarily
terminate and to allow adoption by proposed
paternal relatives[?]

IV. Whether the [orphans’] court erred in not
granting [ ] [F]ather’s petition to dismiss termination
of parental rights petition due to significant delays
from date of filing, 8/14/13, to date of hearing,
2/13/15[?]

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7
In her statement of questions involved in her brief, Mother states that
questions five and six will not be addressed on appeal and are withdrawn.
See Mother’s Brief at 4. Therefore, we do not review them.

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Father’s Brief at 4.

We consider Mother’s and Father’s issues 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.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

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status of the emotional bond between parent and
child, with close attention paid to the effect on the
child of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). The

burden is upon the petitioner to prove by clear and convincing evidence that

the asserted statutory grounds for seeking the termination of parental rights

are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Instantly, we conclude that the orphans’ court properly terminated

Mother’s parental rights pursuant to Section 2511(a)(1) and (b), which

provide as follows.8

§ 2511. Grounds for involuntary termination

(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:

(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.

…

(b) Other considerations.--The court in
terminating the rights of a parent shall give primary
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8
This Court need only agree with any one subsection of 23 Pa.C.S.A.
§ 2511(a), along with Section 2511(b), in order to affirm the termination of
parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Therefore, in light of our
disposition as to Section 2511(a)(1), we need not consider Mother’s
arguments with respect to Section 2511(a)(2), (5), and (8).

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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.A. § 2511(a)(1), (b). In addition, the orphans’ court must then

consider “the parent’s explanation for his or her conduct” and “the post-

abandonment contact between parent and child” before moving on to

analyze Section 2511(b). Id., quoting In re Adoption of Charles E.D.M.,

708 A.2d 88, 92 (Pa. 1998).

This Court has explained that a parent does not perform his or her

parental duties by displaying a “merely passive interest in the development

of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal

denied, 872 A.2d 1200 (Pa. 2005), quoting In re C.M.S., 832 A.2d 457, 462

(Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004). Rather,

“[p]arental duty requires that the parent act affirmatively with good faith

interest and effort, and not yield to every problem, in order to maintain the

parent-child relationship to the best of his or her ability, even in difficult

circumstances.” Id. (citation omitted). Notably, incarceration does not

relieve a parent of the obligation to perform parental duties. An

incarcerated parent must “utilize available resources to continue a

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relationship” with his or her child. In re Adoption of S.P., 47 A.3d 817,

828 (Pa. 2012) (citation omitted).

With respect to 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. Id. 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.
In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of
the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

We begin with Mother’s appeal. We observe that she has failed to

divide the argument section of her brief “into as many parts as there are

questions to be argued” in contravention of Pa.R.A.P. 2119(a). As such,

Mother notes that the first argument in her brief encompasses her first,

third, eighth, ninth, and thirteenth questions presented involving whether

the orphans’ court abused its discretion or erred in terminating her parental

rights. With respect to Section 2511(a)(1), Mother argues that her conduct

does not warrant termination because, although incarcerated within six

months immediately preceding the filing of the petition, she was attempting

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to have visits with E.P., III. Mother’s Brief at 16. In addition, Mother baldly

asserts that, upon her release from prison, she “reached out to her case

worker….” Id. Upon review, the testimonial evidence belies Mother’s

assertions.

In its Rule 1925(a) opinion, the orphans’ court explained its decision to

terminate Mother’s parental rights pursuant to Section 2511(a). The

orphans’ court found that, after receiving the referral from the hospital at

the time of E.P., III’s birth, CYS could not find Mother after multiple

attempts to contact her. Orphans’ Court Opinion, 5/28/15, at 73; see also

Orphans’ Court Opinion, 3/31/15, at Findings of Fact #58-69, 71-75. On

February 7, 2012, two months after E.P., III’s birth, the hospital informed

CYS that Mother had not recently visited E.P., III, and it inquired of CYS

“how the Child could go home if no one was coming to the hospital.”

Orphans’ Court Opinion, 5/28/15, at 73; see also Orphans’ Court Opinion,

3/31/15, at Finding of Fact #74. On the same date, February 7, 2012, CYS

met Mother for the first time at Paternal Grandfather’s home. Orphans’

Court Opinion, 5/28/15, at 73; see also Orphans’ Court Opinion, 3/31/15,

at Finding of Fact #73. The orphans’ court recounted the pertinent facts as

follows.

[T]he [r]ecord is replete with Mother’s repeated
failure to do what was necessary to be reunited with
[E.P., III]…. Although Mother knew she had to
attend the classes at the hospital for [E.P., III]’s
discharge, Mother failed to do so. Mother repeatedly
ignored the numerous letters sent to her by CYS

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asking her to meet with them to discuss case
planning and relative resources. Although Mother
initially stated that she never received any letters
from CYS, Mother was forced to admit that she
received some of the letters because she received
letters all of the time and that her drug use affected
her memory. CYS repeatedly tried to meet with
Mother by going to her home, but Mother was hardly
there.

Mother admitted that over the past three years, she
met with her CYS caseworker five times. From June
2012 to February 2013, Mother participated in case
planning sporadically…. Mother has never offered
herself as a resource for [E.P., III]. From February
2013 to June 2013, Mother was not involved with
CYS…. Mother admitted to not attending the
permanency review hearings even though she had
notice of them. In addition, Mother admitted that
she was not compliant with the terms and conditions
of her probation….

Mother was not even capable of attending visits with
… [E.P., III] …. Beginning [i]n June 2012, Mother
visited with [E.P., III] while in jail three times. From
August 2012 to June 2014, Mother attended seven
out of [4]9 scheduled visits with [E.P., III]. Mother
did not provide any explanation of why she did not
attend the visits until October 2014. Mother, in
October 2014, explained that the visits with [E.P.,
III] were painful for her.

Orphans’ Court Opinion, 5/28/15, at 74-76 (internal citations omitted;

emphasis in original).

In addition, the orphans’ court recited the following record evidence of

Mother’s failure to complete a substance abuse treatment program.

As of March 7, 2013, Mother was discharged from
her substance abuse treatment program at the
Recovery Center because she failed to follow the
recommendations. CYS had numerous conversations

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with Mother about enrolling into in-patient programs.
Mother would enroll in these programs, but never
successfully completed any program. Although
Mother allegedly enrolled in a substance abuse
treatment program in October 2013, Mother never
completed this program because she was placed in
jail in January 2014…. Mother failed to provide the
[orphans’] [c]ourt with any documentation that she
successfully completed any drug rehabilitation
program and[,] therefore, the [orphans’] [c]ourt
cannot state that Mother is no longer an active illegal
drug user.

Id. at 74 (citations to record omitted).

Indeed, on cross-examination by counsel for CYS, Mother

acknowledged that she continued to use illegal drugs during E.P., III’s

dependency as follows.

Q. Now there were a couple of [times] why you
were incarcerated because of testing positive, isn’t
that right?

A. I admitted that I tested positive, yes.

Q. So when you are saying you were trying [to
perform your parental duties to E.P., III], you were
not in compliance with probation, you were still using
substances. You were not able to complete a
substance abuse treatment program successfully.
You weren’t able to do any of that and you were
visiting [E.P., III] sporadically?

A. I couldn’t complete the program because I was
incarcerated. That was the only reason for me
leaving my program. And no I wasn’t doing
everything that I was told, but I was also an
addict who was struggling to recover.

Id. at 133-134 (emphasis added).

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After careful review, we conclude the orphans’ court’s factual findings

are supported by the record evidence. In sum, E.P., III was age four at the

time of the termination hearing. The record evidence detailed above

overwhelmingly demonstrates that, for the entirety of E.P., III’s life, Mother

has failed to perform her parental duties to E.P., III. Mother failed to

cooperate with CYS during the history of this case. In addition, Mother

violated her probation, which resulted in three separate incarcerations

during the history of this case. There is no record evidence that Mother

made any attempt to maintain a parent-child relationship with E.P., III while

incarcerated. When not incarcerated, Mother failed to attend a sufficient

number of visits with E.P., III, attending only seven out of 49 scheduled

visits between August 2012, when she was released from prison, to June

2014.

As such, the evidence, at best, reflects that Mother had “merely [a]

passive interest in the development of” E.P., III, which, as this Court has

explained, is not the performance of parental duties. B.,N.M., supra at

855. The crux of Mother’s explanation for her failure in this regard is that

she was “an addict who was struggling to recover.” N.T., 5/28/15, at 134.

Therefore, the testimonial evidence supports the orphans’ court’s

determination that Mother’s conduct warranted termination pursuant to

Section 2511(a)(1) because she has failed to perform her parental duties far

in excess of the statutory six month period. Therefore, we discern no abuse

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of discretion in the orphans’ court’s decision to terminate Mother’s parental

rights pursuant to Section 2511(a)(1).

With respect to Section 2511(b), Mother argues simply that, by

terminating her parental rights, E.P., III will not know his older sisters and

extended relatives. See Mother’s Brief at 18-19. Mother’s argument is

flawed because sibling and other relationships with extended relatives are

not a part of the Section 2511(b) analysis. Rather, as noted above, the

requisite analysis involves discerning, in part, the “nature and status of the

parent-child bond” and the “effect on the child of permanently severing that

bond.” See J.M., supra.

[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.

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).

In this case, the orphans’ court found that no bond exists between

E.P., III and Mother. Orphans’ Court Opinion, 3/31/15, at Finding of Fact

#320. Rather, the orphans’ court found that a bond exists between E.P., III

and his foster parents. Id. at 321. Therefore, the orphans’ court concluded

that E.P., III will not be negatively impacted by the termination of Mother’s

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parental rights. The testimony of Ms. English, the CYS caseworker, during

the termination hearing, supports the court’s findings. See N.T., 2/11/15,

at 37, 49-52. As such, we discern no abuse of discretion by the orphans’

court in determining that the termination of Mother’s parental rights would

serve the developmental, physical, and emotional needs and welfare of E.P.,

III pursuant to Section 2511(b). Mother’s first, third, eighth, ninth, and

thirteenth issues on appeal are without merit.

Mother notes that the next two arguments in her brief encompass her

seventh, tenth, and twelfth questions presented. Mother argues that the

orphans’ court erred and/or abused its discretion in (1) concluding that CYS

met its burden under the Kinship Care Act; and (2) denying the petition to

confirm consent of the biological parents to the adoption of Child, filed by

R.B. and J.M.

Specifically, Mother argues that, pursuant to 62 P.S. § 1303 (Kinship

Care Program), CYS failed to exercise “due diligence to identify and notify all

grandparents and other adult relatives … to the parent … within 30 days of

the child’s removal from the home when temporary legal and physical

custody has been transferred to the county agency.” Mother’s Brief at 22.

Further, Mother argues that the orphans’ court erred in determining that

Mother cannot consent to the adoption of E.P., III by R.B. and J.M. For the

following reasons, we conclude Mother’s arguments are not properly before

this Court.

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On May 7, 2014, R.B. and J.M. filed a petition for adoption of E.P., III.

Following inquiry and review by the orphans’ court, an order was entered on

January 16, 2015, denying the adoption petition as follows.

Upon consideration of [R.B. and J.M.]’s Petition to
Confirm Consent of the Biological Parents to the
Adoption of the Child and response thereto and the
evidence presented at the hearings on September
23, 2014, October 2, 2014, November 20, 2014, and
December 11, 2014, it is hereby ORDERED and
DECREED that said Petition is DENIED. It is hereby
further ORDERED and DECREED that [CYS] met the
requirements of the Kinship Care Program Act, 62
P.S. § 1303, in this matter.

Orphans’ Court Order, 1/16/15. R.B. and J.M. filed a timely notice of appeal

from this order, which they subsequently withdrew. Mother did not file a

notice of appeal from the January 16, 2015 order. Therefore, Mother’s

seventh, tenth, and twelfth questions involve a final order not appealed by

Mother. Furthermore, the record belies Mother’s contention that CYS did not

comply with Section 1303 of the Kinship Care Program as several hearings

were held to determine if R.B. and J.M. would be a viable placement.

Moreover, her issues pertaining to the adoptive home of E.P., III are not

related to the only order on appeal, the involuntary termination of parental

rights. As such, we do not review them.

Mother notes that her next argument encompasses her second and

eleventh questions presented. Mother argues that the orphans’ court erred

and/or abused its discretion in finding that CYS proved by “clear and

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convincing evidence that it provided reasonable services to Mother when

the[]re existed a conflict of interest for CYS[.]” Mother’s Brief at 26.

In In re D.C.D., 105 A.3d 662 (Pa. 2014), our Supreme Court

considered whether, pursuant to Section 2511(a)(2) of the Adoption Act, the

provision of reasonable efforts by the county children’s services agency is a

factor in the termination of parental rights. The D.C.D. Court rejected the

argument that an agency must provide reasonable efforts to enable a parent

to reunify with a child prior to the termination of parental rights. Further,

the Court rejected the argument that Section 2511 of the Adoption Act

should be read in conjunction with Section 6351 of the Juvenile Act,

particularly section 6351(f)(9)(iii). The D.C.D. Court concluded 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,” an agency’s

failure to provide reasonable efforts to a parent does not prohibit the court

from granting a petition to terminate parental rights under Section 2511.

Id. at 671-675 (citation omitted). In addition, the Court 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 676–677.

Although the D.C.D. Court focused its analysis on Section 2511(a)(2),

we conclude that our Supreme Court’s reasoning is equally applicable to

Section 2511(a)(1). Like Section 2511(a)(2), nothing in the language of

Section 2511(a)(1) suggests that reasonable reunification services are

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necessary to support the termination of parental rights. As such, we will not

disturb the termination order on this basis. Mother’s second and eleventh

issues fail.

Mother notes that her fourth question presented is encompassed in her

final argument in her brief. Mother argues the orphans’ court erred in not

dismissing CYS’s petition to terminate her parental rights because it was not

“carried out promptly in accordance with Pa.R.C.P. No. 1915.4 and Pa. O.C.

Rules 15.4 - 15.6.” Mother’s Brief at 30. Mother’s argument is without

merit.

The plain language of Rule 1915.4 (Prompt Disposition of Custody

Cases) reveals that it applies to child custody cases, and not to matters

involving the involuntary termination of parental rights. Further, a review of

Pa. Supreme Orphan Court Rules 15.4 (Involuntary termination of parental

rights), 15.5 (Adoption), and 15.6 (Notice to Persons; Method; Notice of

Orphans’ Court Proceedings Filed on Dependency Docket) reveals that they

do not support Mother’s assertion as they do not require the dismissal of an

involuntary termination action for failure to promptly list it for trial.

Therefore, Mother’s final argument fails.

We next turn to Father’s issues on appeal. As noted above, Father

was incarcerated from February 2012, until May 2013. With respect to

Section 2511(a), Father asserts that, while incarcerated, he made efforts “to

ascertain through CYS and his family how his child was doing, wrote and

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asked for pictures and inquired as to what was being done by [M]other and

specifically [Paternal Grandfather] and [Step-Grandmother] who were to

take this child upon his release from the hospital after birth.” Father’s Brief

at 8. In addition, Father asserts that, upon his release from prison, he

returned to Paternal Grandfather’s home and called “the CYS worker ‘to talk

to her to see what was going on because [Paternal Grandfather] had two of

my other children, what I had to do for [E.P., III] to come home….’” Id.

(citation to record omitted).

In its Rule 1925(a) opinion, the orphans’ court set forth the following

factual findings in support of its decision.

Father never made any effort to care for [E.P., III].
The [r]ecord is replete with instances showing that
Father did not make himself available for services
from CYS. Father did not even attend the
Involuntary Termination of Parental Rights hearing in
this matter…. English, Father’s [CYS] [c]aseworker,
testified that Father made it extremely difficult for
CYS to contact him upon his release from jail.
English testified that when Father was released from
jail in May 2013, he did not contact CYS until
October 2013. At one point, English had to contact
Father’s State Probation Officer to try and find him.

[] English further testified that Father never
presented himself as a resource for [E.P., III] Father
admitted that he never exercised his visitation rights
provided to him by CYS. The [r]ecord is extremely
clear that CYS tried to provide services to Father, but
Father was not interested in taking advantage of
such services, including visitation with his own child.
Father has not seen his son since February 2012.
Father has not seen his child since he was two
months old…. Father’s own conduct shows that he

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had little or no interest at all being reunited with his
son…..

Orphans’ Court Opinion, 5/28/15, at 60-61 (citations to record omitted).

The testimony of Ms. English, the CYS caseworker, supports the

orphans’ court’s factual findings. To the extent that Father challenges the

orphans’ court determinations regarding credibility and weight of the

evidence, we reject his argument as this Court defers to the orphans’ court

in that regard. See T.S.M., supra. We discern no abuse of discretion by

the court in concluding that Father’s conduct warrants termination pursuant

to Section 2511(a)(1). The record evidence overwhelmingly demonstrates

that, for the entirety of E.P., III’s life, which is far in excess of the statutory

six-month period, Father has evidenced a settled intent to relinquish

parental claim to Child or has failed to perform his parental duties to Child.

With respect to Section 2511(b), Father argues that the evidence does

not support that terminating his parental rights would serve Child’s needs

and welfare because a bonding evaluation was not performed regarding E.P.,

III and Father. However, it is well-settled that the trial court is not required

by statute or precedent to order a formal bonding evaluation be performed

by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).

Therefore, we reject Father’s argument. In addition, there is no evidence of

a bond between E.P., III and Father. E.P., III was four years old at the time

of the termination hearing, and Father had not seen E.P., III since he was

two months old. As such, we conclude the orphans’ court did not abuse its

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discretion in terminating Father’s parental rights pursuant to Section

2511(b).

In Father’s second issue, he asserts, like Mother, that the orphans’

court erred in determining that CYS met the requirements of the Kinship

Care Act, 62 P.S. § 1303. In his third issue, Father asserts, like Mother, that

the orphans’ court erred in not accepting his consent to the adoption of E.P.,

III by R.B. and J.M. Father’s issues are identical to the issues raised in

Mother’s appeal, and discussed at length above. As such, we need not

repeat our conclusions here. The record demonstrates CYS complied with

Section 1303 of the Kinship Care Act, and all issues pertaining to the

January 16, 2015 order, discussed supra with respect to Mother’s appeal are

not properly before this Court. Further, any challenges to the adoption of

E.P., III are premature at this juncture as these issues are not related to the

only order on appeal, that is, the involuntary termination of his parental

rights.

In his fourth and final issue, Father asserts, like Mother, that the court

erred in not dismissing the involuntary termination action due to the delay in

scheduling it for trial. The record reveals that, one week after the

termination hearing, on February 18, 2015, Father filed a motion to dismiss

the petition for the involuntary termination of his parental rights pursuant to

Pa.R.C.P. 1915.4, Orphans’ Court Rule 15.6, and Dietrich v. Dietrich, 923

A.2d 461 (Pa. Super. 2007).

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As explained with respect to Mother’s appeal, the plain language of

Rule 1915.4 (Prompt Disposition of Custody Cases) reveals that it applies to

child custody cases and not to matters involving the involuntary termination

of parental rights. Further, this Court’s decision in Dietrich involved

whether a petition for child custody was subject to dismissal under Rule

1915.4(b). As such, Dietrich is inapplicable in this involuntary termination

matter. In addition, Pa. Supreme Orphan Court Rule 15.6 (Notice to

Persons; Method; Notice of Orphans’ Court Proceedings Filed on Dependency

Docket) does not support Father’s assertion as it does not require the

dismissal of an involuntary termination action for failure to promptly list it

for trial. Finally, to the extent Father argues that a prompt hearing on an

involuntary termination petition is guaranteed by the due process clause of

the Fourteenth Amendment to the United States Constitution, we are

unpersuaded. As Father concedes, “there is no particular statute requiring a

hearing date on termination be held within a specific period of time after the

filing of the termination petition[.]” Father’s Brief at 18. Further, Father

notes the orphans’ court held hearings on June 26, July 31, September 23,

October 2, November 20, and December 14, 2014.9 Id. Therefore, even

____________________________________________

9
Significantly, as the orphans’ court noted in its Rule 1925(a) opinion, the
delay in this matter was caused by Father and Mother wanting Child to be
adopted by R.B. and J.M. Father and Mother executed consents to adoption
for this purpose, and, as discussed above, multiple hearings arose as a
result. Orphans’ Court Opinion, 5/28/15, at 70-71. As such, we conclude
(Footnote Continued Next Page)

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assuming Father were correct that the Due Process Clause contained such a

requirement, Father’s final issue nevertheless fails.

Based on the foregoing, we conclude the orphans’ court did not abuse

its discretion when it involuntarily terminated Mother and Father’s parental

rights. See T.S.M., supra. Accordingly, we affirm the orphans’ court’s

March 31, 2015 orders.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2015

_______________________
(Footnote Continued)

that Mother’s and Father’s issues on appeal are disingenuous with respect to
the delay in the involuntary termination proceeding.

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