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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.P.R., A.Y.L.R., F.R.L.R., J.L.R., IN THE SUPERIOR COURT OF
H.R., AND A.L.R. PENNSYLVANIA
v.
APPEAL OF: A.M.R.M., MOTHER
No. 1606 MDA 2015
Appeal from the Decree entered August 18, 2015,
in the Court of Common Pleas of Lancaster County,
Orphans' Court, at No(s): 458 of 2015
68 of 2015
69 of 2015
70 of 2015
71 of 2015
72 of 2015
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED MAY 24, 2016
Appellant, A.R. (“Mother”) appeals from the decrees involuntarily
terminating her parental rights to six children, L.P.R., A.Y.L.R., F.R.L.R.,
J.L.R., H.R., and A.L.R., (“the Children”) pursuant to the Adoption Act, 23
Pa.C.S.A. § 2511 (a) and (b). We affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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In January 2007, Mother gave birth to her first child that is the subject
of this appeal, L.P.R. The paternity of L.P.R. was never established.
In June 2010, the Lancaster County Children and Youth Social Service
Agency (“the Agency”) first came into contact with Mother when Mother
gave birth to A.Y.L.R, the first of five children that Mother had with Father in
a five year period.1 Both Mother and A.Y.L.R. tested positive for cocaine.
Mother moved to Philadelphia and, a year later, in September 2011,
Mother gave birth to the parents’ second child, F.R.L.R in Philadelphia.
F.R.L.R. also had cocaine in his system when he was born. F.R.L.R was
released to Father in Lancaster and the Agency closed its file.
Seven months later, in April 2012, Mother returned to Lancaster and
was living with Father and the children. The Agency again opened its file on
this family. Aware of Mother’s significant untreated substance abuse issues,
the Agency directed that Father was to ensure that Mother did not have any
unsupervised contact with the children.
In August 2012, less than a year after giving birth to F.R.L.R., Mother
gave birth to the parents’ third child, J.L.R. Again, Mother and her baby
tested positive for cocaine. J.L.R. was released to Father.
In January 2013, Mother reported that she had lied about going to
Philadelphia, and had been living with Father the entire time, hiding
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1
Father’s appeal of the decrees terminating his parental rights to the five
children he had with Mother is discussed at 1605 MDA 2015.
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whenever a caseworker came to the house. Father denied that Mother was
living with him, told the Agency that he had moved to New Jersey, but would
not provide an address. The Agency again closed its file.
In May 2013, Mother pled guilty to five counts of forgery and was
sentenced to probation.
A year after the birth of J.L.R., in August 2013, Mother gave birth to
the parents’ fourth child, H.R. H.R. was born not only with cocaine in his
system, but also prematurely.
The Agency then learned that Mother was back in Lancaster and that
she and the five children were living with Father. Although the Agency had
directed Father not to leave the children alone with Mother because she had
significant untreated substance abuse issues, Father disregarded this
directive and permitted Mother, who had not yet resolved her substance
abuse issues, to care for the children when he went to work.
The Agency filed a Dependency Petition against the parents and on
November 4, 2013, the court granted legal custody of the Children to the
Agency, removed the Children from the care of the parents and placed them
in foster care.
A year after the birth of J.L.R, in August 2014, Mother gave birth to
the parents’ fifth child, A.L.R. Although Mother admitted to taking cocaine
during the first trimester of her pregnancy, neither she nor A.L.R. tested
positive for cocaine at the time of the child’s birth. The child, however, was
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born prematurely and remained in the intensive care unit of the hospital for
two and a half weeks.
Upon the Child’s release from the hospital, the Agency filed a
Dependency Petition for A.L.R. and the court granted legal custody of the
Child to the Agency and placed the child in foster care with her siblings.
In an effort to reunify the Children with the parents, the Agency
provided the parents with Family Service Plan (“FSP”) objectives in order to
resolve the issues that led to the removal of the Children from them. The
parents, however, did little to address the issues that led to the removal of
Children during the year in which the Children were in foster care and,
consequently, the parents did not meaningfully comply with their FSP
objectives. As a result, on November 24, 2014, the parents’ permanency
goal for the five oldest Children was changed to adoption. On February 9,
2015, the permanency goal for A.L.R. was changed to adoption.
On January 9, 2015, the Agency filed a Petition to Terminate Mother’s
Parental Rights (“TPR Petition”) with regard to the five older children and on
February 26, 2015, the Agency filed a TPR Petition with regard to the
youngest child, A.L.R.
The Orphans’ Court held evidentiary hearings on the Agency’s TPR
Petitions for the six children on July 13, 2015, and August 10, 2015. The
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trial court granted the petitions on August 18, 2015. Mother appeals from
the decrees.2
ISSUE ON APPEAL
Mother raises the following issue on appeal:
A. Whether the [orphans’] court erred in terminating
Mother’s parental rights?
Mother’s Brief at 17.
LEGAL ANALYSIS
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.” In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012) (citation omitted). “If the factual findings
are supported, appellate courts review to determine if the trial court made
an error of law or abused its discretion.” Id. (citation omitted). We may
reverse a decision based on an abuse of discretion only upon demonstration
of “manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id.
(citation omitted). We may not reverse, however, merely because the record
would support a different result. Id. at 827.
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2
In derogation of Pa.R.A.P. 341, Mother filed a single notice of appeal even
though the Orphans’ Court entered three separate decrees. However,
because no one involved in these cases has objected, and the court
addressed Mother’s issue pertaining to each order, we do not find this
procedural error fatal to Mother’s appeal. See Dong Uan Chen v. Saidi,
100 A.3d 587, 589 n.1 (Pa. Super. 2014).
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We give great 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). The Orphans’ 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. In re M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004) (citation omitted). In addition, in order to
affirm the termination of parental rights, this Court need only agree with any
one subsection under Section 2511(a). See In re B.L.W. 843 A.2d 380,
384 (Pa. Super. 2004) (en banc).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he 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.” Id. (citations omitted).
Termination Pursuant to 2511(a)(1)
Section 2511(a)(1) provides that the trial court may terminate
parental rights if the Petitioner establishes that for six months, the parent
demonstrated a settled intent to relinquish a parental claim or a refusal or
failure to perform parental duties:
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a) 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 has evidenced a settled purpose of
relinquishing parental claim to a child or has
refused or failed to perform parental duties.
23 Pa.C.S.A. 2511(a)(1). This Court has interpreted this provision as
requiring the Petitioner to demonstrate a settled intent to relinquish a
parental claim to a child or a refusal or failure to parent:
To satisfy the requirements of section 2511(a)(1), the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to relinquish
parental claim to a child or a refusal or failure to perform
parental duties.
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted).
Our Courts have defined “parental duties” in general as the obligation
to affirmatively and consistently provide safety, security and stability for the
child:
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A
child needs love, protection, guidance, and support. These
needs, physical and emotional, cannot be met by a merely
passive interest in the development of the child. Thus, this
Court has held that the parental obligation is a positive duty
which requires affirmative performance. This affirmative duty …
requires continuing interest in the child and a genuine effort to
maintain communication and association with the child. Because
a child needs more than a benefactor, parental duty requires
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that a parent exert himself to take and maintain a place of
importance in the child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
Moreover, a parent must exercise reasonable firmness in resisting
obstacles placed in the path of maintaining the parent child relationship:
Parental 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. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship.
Id. at 855 (internal citations omitted).
Most importantly, “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 her physical and emotional needs.” Id.
(citation omitted).
In the instant case, the Orphans’ Court properly concluded that the
Agency met the requirements of 2511(a)(1). The Orphan’s Court outlined
the severity of Mother’s drug addiction, its impact on her inability to care for
the Children, her dishonesty about her drug addiction, and her unwillingness
to obtain treatment:
Mother has been a cocaine addict for years, and may well
continue in that status, since she has not yet been able to
maintain consistent sobriety. Four of her six children were born
with the drug in their system. The fifth was born prematurely
after Mother took cocaine during the first three months of her
pregnancy. On a number of times she left her house to live on
the street and be involved with the drug. Even after the
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[C]hildren were placed in foster care, she was unable to control
her addiction and tested positive at least twice. There were
times, when she had no prior warning, that she refused to take a
drug screen, and the court can only assume she knew she had
something in her system that would trigger an unwanted result.
She lied to Dr. Gransee about her drug use, with a bizarre story
about holding a bag of cocaine. She has not completed her
reunification plan, preferring rather to choose her own treatment
providers, to withhold information from the Agency, and not to
follow through on treatment. [Mother] was unsuccessfully
discharged from two of the providers because of her lack of
compliance and/or attendance at their programs. Even if she
adheres to her current mental health treatment, [Mother] cannot
complete it for at least six months, and the court believes that to
be an unrealistically short estimate. She lives with a friend, in a
house unsuitable for two adults and six children. The children
have been in foster care for more than fifteen months. This
situation fulfills the standard set forth in the adoption cited
above.
Opinion Sur Appeal, dated 10/13/15, at 13.
The Orphan’s Court further found that although the Agency made
referrals for Mother to obtain the services to remedy the issues that led to
the removal of the Children, Mother was unwilling to take advantage of
those services and thus, failed to comply with her FSP objectives:
Both Father and Mother expressed displeasure that the Agency
refused to accept their self-referred treatment programs as
evidencing progress with their plans. Such a belief is unrealistic.
The purpose of the plan is not to give the parents a tentative
outline of tasks to perform simply for the sake of performance.
The purpose is to provide remedial treatment and information to
the parent[s] so that they can overcome the behavior which
caused the removal of the children from their custody and
thereby become fit and appropriate parents within a reasonable
time. The parents in this case chose their own remedial
avenues, without any knowledge that those avenues conformed
to those the Agency considered appropriate and adequate for the
needs of the case. The parenting program [to which the parties
self-referred] might be lacking in information, or rigor, or
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accuracy. It cannot be accepted by the Agency in place of a
[personal parenting trainer] simply because it is titled “Parenting
Program.” The Court agrees with the Agency that sporadic
attendance at self-referred programs does not constitute the
completion of a service plan to justify the return of the
[C]hildren to the home.
Id. at 14 - 15.
Additionally, the Orphan’s Court did not find Mother’s testimony to be
credible:
The Court has witnessed the testimony of both Mother and
Father and has found it to be non-credible. Mother lied
repeatedly to the Agency and the Court. Father lied repeatedly
to the Agency and the Court. The motivation of their lies was to
place the [C]hildren in the custody of a cocaine-addicted mother.
Id. at 16.
Mother argues that the Agency “failed her in her attempts to work on
her plan for reunification as testified to in the record.” Mother’s Brief at 23.
According to Mother, “[t]he evidence suggests that the Agency ignored
Mother’s attempts to contact and cooperate and work on her plan. The
caseworkers refused to make referrals. Mother repeatedly testified to her
own efforts to get into counseling, therapy, and parenting.” Id.
Mother further asserts that the record is devoid of any testimony that
her self-referring was unacceptable or inadequate, and suggests that her
efforts were not classified as such until the November 2014 hearing, more
than a year after the Children were placed with the Agency.
We find that these arguments focus on the credibility of the witnesses,
and we accept the trial court’s determination that it found the testimony of
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the caseworkers to be credible and Mother’s testimony to be not credible. In
re M.G., supra.
Finally, Mother argues that the evidence was insufficient to terminate
her parental rights under Section 2511(a)(8). See Mother’s Brief at 23-26.
Since we find that the Orphan’s Court held that the Agency provided
sufficient evidence pursuant to Section 2511(a)(1), we do not need to
address the sufficiency of the evidence to establish the requirements of
Section 2511(a)(8). B.L.W., supra.
Accordingly, the court did not abuse its discretion in terminating
Mother’s parental rights pursuant to 23 Pa.C.S. §2511(a)(1).
Termination Pursuant to 23 Pa.C.S.A. §2511(b)
We also agree with the Orphan Court’s determination that the Agency
met its burden under 23 Pa.C.S.A. 2511(b) and that terminating the
Mother’s parental rights is in the best interests of the Children.
In analyzing whether the Orphan’s Court properly applied Section
2511(b), our analysis shifts focus from parental actions in fulfilling parental
duties to whether it is in the child’s best interest to sever the parental bond.
In particular, section 2511(b) “focuses on whether termination of parental
rights would best serve the developmental, physical, and emotional needs
and welfare of the child.” In re: Adoption of J.M., 991 A.2d 321, 324 (Pa.
Super. 2010).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court
found that “intangibles such as love, comfort, security, and stability are
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involved in the inquiry into the needs and welfare of the child.” In addition,
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. In cases where there is no evidence of a bond
between a parent and a child, it is reasonable to infer that no bond exists.
In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Thus, the analysis
of the impact of severing the parental bond necessarily depends on the
circumstances of the particular case. Id. at 763.
Moreover, the trial court does not need a formal bonding evaluation to
determine the impact that severing the parental bond will have on the child.
It is sufficient for a social worker or a professional with similar expertise to
opine on the impact that severing the bond will have on the child. In re
K.M., 53 A.3d 781, 791 (Pa. Super. 2012).
In the instant case, the Orphans’ Court properly concluded that there
is not a meaningful bond between Mother and the Children because Mother
never consistently provided safety, stability or security for the Children, the
Children are thriving in their foster homes, and while living with Father, they
watched Mother take drugs or disappear:
The testimony throughout this matter indicates that all of the
Children are doing well in their foster homes. Striking to the
[C]ourt was the testimony that the oldest child did not express
concern that he could not be returned to his parents, but that he
had concerns that he was not with his siblings. Five of these
children have been separated from their parents since August of
2013. While they were still in Father’s custody, they watched
Mother take her drugs or disappear periodically into the street or
another community. There was no stability for them in terms of
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loving and consistent parents. [A.L.R.] has never lived with
Father or Mother, having been placed in custody directly after
her birth. All of the Children seem happy and healthy in their
foster homes and are bonded to their foster parents. There is
nothing in the record indicating a current strong bond
between the Children and their parents.
Opinion Sur Appeal at 16 (emphasis added).
The trial court also properly relied upon the expert testimony of Dr.
Gransee that Mother puts cocaine above all else in her life and is unable to
make a physical and emotional commitment to the Children and provide
stability for the Children:
The Court takes seriously Dr. Gransee’s testimony [sic] in which
he sees a repetitive harmful pattern in these people’s
relationship, Mother in putting cocaine above all else in her life
and Father not being able to separate from mother, sober or not.
[The Children] need the types of homes they now reside in, with
stable parents and a stable environment. They need parents
who do not present the model of drug use and lack of both
physical and emotional commitment to them. They should not
have to wait a period of at least six months or more to see if
Mother is capable of remedying her problems or if Father is
capable of placing Mother and her drug related difficulties in an
appropriate perspective. Accordingly, the Court believes the
best interest of [the Children] requires that Mother’s and
Father’s parental rights be terminated and the [C]hildren be
adopted by loving and committed families.
Id. at 16-17.
Mother argues that the Orphan’s Court erred because the older
children “had enjoyed the emotional support of [] Mother and had a bond
with her which was maintained through visitation.” Mother’s Brief at 26.
She further argues that the Agency presented no expert testimony regarding
the bond that she has with her children, and notes Father’s objection to the
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caseworkers’ “bonding testimony” on that basis. According to Mother, her
bond with the children “was not directly addressed nor apparently
considered an issue at all by the [orphans’] court.” Id. at 27. Finally,
Mother suggests that the Agency “purposefully” failed “to explore how the
[C]hildren’s might [sic] be affected or influenced by permanently separating
them from” her. Id.
Our review of the record supports the Orphans’ Court’s determination.
We disagree with Mother’s arguments that are based upon her credibility. As
discussed above, the trial court found Mother’s testimony to be “non-
credible” and we see no reason to disturb that finding. In re M.G., supra.
Moreover, Mother presented no testimony or other evidence regarding
the strength of her bond with any of the Children. Finally, contrary to her
contention, the Orphan’s Court may qualify a social worker as an expert
pursuant to Pennsylvania Rule of Evidence 702, and this Court has held that
social workers are qualified to provide expert opinions regarding the impact
that severing a parental bond will have on a child. In re K.M., supra at 791
(Pa. Super. 2012); see also Daniel J. Anders, Ohlbaum on the Pennsylvania
Rules of Evidence § 702.08[3] (2016 ed. LexisNexis Matthew Bender).
CONCLUSION
In sum, our review of the record supports the Orphans’ Court’s
determination that the Agency met its statutory burden of proving by clear
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and convincing evidence that the court should terminate Mother’s parental
rights to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b). Accordingly, we affirm.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
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In Re: L.P.R., A.Y.L.R., F.R.L.R., J.L.R., H.R.
Combined Opinion