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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.S.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: V.C., NATURAL MOTHER :
: No. 1303 WDA 2015
:
Appeal from the Order August 3, 2015,
in the Court of Common Pleas of Somerset County,
Orphans’ Court Division, at No. 6 Adoption 2015
BEFORE: STABILE, DUBOW, AND MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED MARCH 22, 2016
V.C. (Mother) appeals the Order of the Court of Common Pleas of
Somerset County that granted the petition of Child’s maternal great aunt
and great uncle, B.J. and T.J. (Great Aunt and Great Uncle), to terminate
Mother’s parental rights to M.G. (Child), born May 9, 2011.1 We affirm.
The record supports the following summary of the facts of this case.
When Child was approximately thirteen months old, Mother asked her
grandmother, Maternal Great Grandmother, to babysit for the Child and
indicated that she would bring Child to Great Grandmother’s home. When
Mother and Child never showed up, Great Grandmother went to Mother’s
apartment and found Mother lying unresponsive on the floor with Child
unattended. Great Grandmother contacted CYS.
1
The trial court also terminated Father’s parental rights. Father did not
appeal that determination.
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CYS placed Child briefly with Maternal Great Grandmother, and shortly
thereafter, with Child’s Great Aunt and Great Uncle. Child has lived with her
Great Aunt and Great Uncle since she was approximately a year old. At the
time of the termination hearing in August 2015, Child was four years old.
Mother, who is an admitted heroin addict, has been involved in several
criminal incidents and has been incarcerated several times since Child’s
birth. Although Mother visited with Child by agreement of all parties, her
visits declined in frequency as time passed. Child refers to Mother as “[G …]
” or “Mommy [G …].” N.T. 8/3/15 (N.T.), at 15. She refers to Great Aunt as
“B” and Great Uncle as “[T … ]” and collectively calls them “family.” N.T., at
14, 15, 65, and 67. Mother’s last visit with Child was in April 2015 at a local
diner, along with Great Aunt and Maternal Grandmother. Prior to that visit,
Mother had not seen Child since December 2014.
Mother was again incarcerated in May 2015. She remains incarcerated
while she awaits the disposition of her current criminal case. Mother has not
made any effort to contact Child, via mail, telephone or otherwise, since
becoming incarcerated.
On May 21, 2015, Great Aunt and Great Uncle filed their Petition to
Terminate Mother’s and Father’s Parental Rights so they could adopt Child.
On August 3, 2015, the trial court held a hearing on the petition. Great
Aunt and Great Uncle testified and presented the testimony of Child’s Great
Grandmother and Father. Mother testified on her own behalf.
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On August 5, 2015, the trial court entered its Order terminating
Mother’s and Father’s parental rights. Mother filed her Notice of Appeal on
August 14, 2015, and her Concise Statement of Errors Complained of on
Appeal with this Court on September 29, 2015.
Mother raises the following issues on appeal:
1. The Trial Court erred in finding that statutory grounds existed
for the termination of [Mother’s] parental rights, pursuant to 23
Pa.C.S.A.§ 2511(a)(1)[,](2) specifically:
a) That [Mother] by conduct continuing for a period of at least
six months preceding the filing of the petition for termination,
has evidenced a settled purpose of relinquishing parental
claim to the child or has refused or failed to perform parental
duties;
b) That [Mother] has exhibited repeated and continued neglect
or refusal to to parent and such failure has caused the child to
be without essential parental care, control or subsistence
necessary for her physical care, control or subsistence
necessary for her physical care or mental well-being and the
causes of the neglect or refusal cannot or will not be
remedied.
2. The Trial Court erred in finding that termination of [Mother’s]
parental rights was in the best interests of the child. 23
Pa.C.S.A. §2511(b).
[3.] The Trial Court did not require a Statement of Errors
Complained of pursuant to Pa.R.A.P. 1925(b).
Mother’s Brief, at 5-6.
As we begin our analysis, we note that Mother has failed to
append a copy of the Trial Court Opinion to her Brief as required by
Pa.R.A.P. 2111(a) and (b). Such an omission may be cause for the
waiver of an Appellant’s issues raised on appeal. However, since
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Mother’s omission hampers our review but does not prevent it, we will
not consider her issues waived.
Our standard of review of parental rights termination orders is as
follows:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated that we must accept the trial court’s findings
so long as they are supported by competent evidence:
Where the hearing court’s findings are supported by competent
evidence of record, we must affirm the hearing court even
though the record could support an opposite result.
We are bound by the findings of the trial court which have
adequate support in the record so long as the findings do not
evidence capricious disregard for competent and credible
evidence. The trial court is free to believe all, part, or none of
the evidence presented, and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.
Though we are not bound by the trial court’s inferences and
deductions, we may reject its conclusions only if they involve
errors of law or are clearly unreasonable in light of the trial
court’s sustainable findings.
In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations
omitted).
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The trial court terminated the parental rights in question here pursuant
to 23 Pa.C.S.A. §§2511(a)(1), (2), and (b). In order to affirm the
termination of parental rights, this Court need only agree with any one
subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
The basis for terminating parental rights is governed by 23 Pa.C.S.A. §
2511, which provides, in pertinent part:
§ 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 consideration to the
developmental, physical and emotional needs and welfare of the
child. …
23 Pa.C.S.A. § 2511.
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which requires evidence 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.” In
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re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further, this Court has noted
that parents must “utilize all available resources” and “resist[] obstacles
placed in the path of maintaining the parent-child relationship. ”In the
Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008). “Parental 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.” Id.
To terminate parental rights pursuant to Section 2511(a)(1), the
person or agency seeking termination must demonstrate through clear and
convincing evidence that, “for a period of at least six months prior to the
filing of the petition, the parent’s conduct demonstrates a settled purpose to
relinquish parental rights or that the parent has refused or failed to perform
parental duties.” In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.
Super. 2003).
In evaluating Section 2511(a)(1), the court should consider the
parent’s explanation for his or her conduct and the degree of contact
between the parent and child. In re Adoption of Charles E.D.M., 550
A.2d 595, 602, 708 A.2d 88, 92 (Pa. 1988). Further, “the trial court must
consider the whole history of a given case” and “consider all explanations
offered by the parent facing termination of his or her parental rights, to
determine if the evidence, in light of the totality of the circumstances, clearly
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warrants the involuntary termination. In re N.M.B., 856 A.2d 847, 854-855
(Pa. Super. 2004) (citations omitted).
In the instant case, the trial court concluded that Mother failed to
perform any parental duties for a period of at least six months immediately
preceding the filing of the petition. The basis of the court’s decision was that
Mother’s conduct of criminal activity and drug use is inconsistent with
parenting, and her failure to make an effort to contribute to her child’s care
and support evidenced a settled purpose of relinquishing claim to her
daughter. See Trial Court Op., dated 11/6/15, at 10 (unpaginated).
Mother first claims that “the testimony shows that [Mother] has made
every effort possible to be a mother to her child in spite of the nearly
insuperable barriers that appellees placed in [Mother’s] path.” Mother’s Brief
at 12. The thrust of Mother’s argument is that she was unable to parent
Child because Great Aunt would not permit her to come to her house, and
that Great Aunt refused to permit Mother to speak with Child when she
called the house.
We agree with the finding of the trial court that Great Aunt’s refusal to
permit Mother to visit her house was justified:
Appellees testified that the reason [Mother] was not welcome at
their residence was that she had a history of stealing from them
and they were afraid to give her access to another opportunity.
Their concern appears to be well founded inasmuch as [Mother]
has pending theft charges and prior burglaries for which her
parole was revoked. . . . [Great-Aunt] also testified that the
recent criminal activity was known to have occurred at her
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residence, and accordingly, we would find that, again, her
concerns were well founded.
Trial Ct. Op., 11/6/15, at 9 (unpaginated).
The trial court also properly found Great Aunt’s refusal to permit
Mother to speak with Child was a result of Mother’s angry and threatening
tone:
Appellees credibly testified that the telephone calls from Mother
were angered and threatening that she would ‘come and pick up
her daughter,’ essentially without the permission of the lawful
custodians, the Appellees. Ultimately, Appellees would not
accept her telephone calls, thereby creating another obstacle for
Mother. [Mother] decided to treat this as an insurmountable
obstacle without taking any further action to enforce her
parental rights.
Id.
The trial court properly concluded that Mother herself created the
obstacles that prevented her from being able to provide safety, security, and
stability for Child:
[T]here were many family members who would have helped her
if she was able to show them that she was sincere about putting
her drug use behind her and start becoming [sic] a responsible
citizen. She had no job, no safe residence, no money, no
children’s clothing, and no apparent desire to put on a good
appearance for her family to gain their trust.
Id.
In order to parent a child, a parent must be able to provide, at a
minimum, safety, security and stability for a child. In this case, as the trial
court observed, Mother’s substance abuse prevented her from providing
these basic parental duties for Child not only for the six months before the
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Great Aunt and Great Uncle filed the termination petition, but for the entire
life of Child.
Moreover, Mother made minimal effort to perform any parental duties
for Child during Child’s life, and any obstacles that Mother faced in obtaining
contact with Chld were created by Mother. The trial court properly found
that Petitioners met the requirements of Section 2511(a)(1).
In her second issue, Mother complains, “[T]he trial court did not
undertake an examination of the parent-child bond under 25 Pa.C.S.A.
§2511(b).” Mother’s Brief at 15. We disagree.
The Adoption Act provides that a trial court “shall give primary
consideration to the developmental, physical and emotional needs and
welfare of the child.” 23 Pa.C.S.A. § 2511(b). The Act does not make specific
reference to an evaluation of the bond between parent and child but our
case law requires the evaluation of whether a meaningful bond exists
between the parent and child. See In re E.M., 533 Pa. 115, 620 A.2d 481
(1993). However, this Court has held that the trial court is not required by
statute or precedent to order a formal bonding evaluation performed by an
expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
The trial court properly articulated the strong relationship that Child
has developed with Great Aunt and Great Uncle as a result of their meeting
all of her needs for an extended period of time. In contrast, Mother has
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done little to care for Child and has not developed a meaningful relationship
with Child. As the trial court properly observed:
[Child], now four years of age, is thriving by the grace of [Great
Aunt and Great Uncle] who have created a world of care for
[Child] which was, and is, not possible with Mother. Parenting
means being there for the child on a day in day out basis to
feed, clothe, nurture, and protect [Child] until she can fend for
herself. Historically, Mother has contributed little to the
parenting effort, i.e., she has failed to pay any support, has
failed to engage in her medical decision making, failed to be
there for her when she needs comfort in the middle of the night,
and failed to provide transportation, shelter, clothing, and life’s
necessities.
Trial Ct. Order at 10.
Our review of the record reveals that the record evidence supports the
trial court’s analysis of Child’s best interests. Great Aunt and Great Uncle
are providing for Child’s physical and emotional needs and well-being. Since
Mother has made minimal effort to have a relationship with Children, the
Child does not have a meaningful bond with Mother and severing that bond
will not be detrimental to Child. As the trial court observed, terminating
Mother’s parental rights will permit Child, “to get on with her little life with
parents who love her and know the proper decisions to be made in
parenting.” Trial Ct. Op. at 11. Child’s guardian ad litem supports the
termination of Mother’s parental rights. See Brief of M.S.G. Therefore, the
trial court did not abuse its discretion or err as a matter of law in concluding
that Great Aunt and Great Uncle had met their burden with respect to 23
Pa.C.S. § 2511(b).
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Regarding her third issue, Mother misreads our law. Our Rules of
Appellate Procedure require an appellant in a Children’s Fast Track Case to
file a Concise Statement of Errors Complained of on Appeal with his or her
Notice of Appeal. It is not the responsibility of the trial court to order that
filing. Pa.R.A.P. 905(a)(2) and 1925(a)(2)(i). Mother’s third issue has no
merit.
For foregoing reasons, we affirm the Order of the Court of Common
Pleas of Somerset County terminating Mother’s parental rights pursuant to
23 Pa.C.S.A. §§2511(a)(1) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2016
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