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

J-S50017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

APPEAL OF: N.M.S., MOTHER No. 2218 MDA 2015

Appeal from the Order dated November 18, 2015,
in the Court of Common Pleas of Cumberland County, Orphans’
Court, at No: 19 Adoptions 2015

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

APPEAL OF: N.M.S., MOTHER No. 2219 MDA 2015

Appeal from the Order dated November 18, 2015,
in the Court of Common Pleas of Cumberland County, Orphans’
Court, at No: 20 Adoptions 2015

BEFORE: MUNDY, STABILE, and FITZGERALD*, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 11, 2016

Appellant, N.M.S. (Mother), appeals from the November 18, 2015

decree involuntarily terminating her parental rights to her legally adopted

sons, E.D.S., born in July 2000, and A.M.S., born in May 1999. Upon careful

review, we affirm.1

On March 5, 2015, T.D.S. (Father) and his wife, C.M.S. (Stepmother),

filed petitions for the involuntary termination of Mother’s parental rights to

E.D.S. and A.M.S., biological brothers whom Mother and Father adopted

* Former Justice specially assigned to the Superior Court.
1
The Guardian ad Litem (GAL) filed a brief in this appeal in support of the
termination decree.
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from Guatemala in 2005, pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b). In

addition, on March 5, 2015, Stepmother filed a petition for adoption of

E.D.S. and A.M.S.

Hearings were held on the termination petitions on June 26, 2015, July

31, 2015, and October 12, 2015. Father testified on his own behalf, and he

presented the testimony of Tegan Blackbird, Ph.D.; the parties’ daughters,

T.S., age 29, and C.S., age 22; Stepmother; and Deborah L. Salem, a

clinical evaluator. Mother testified on her own behalf, and she presented the

testimony of Annette Cremo, Ph.D., and Laura Pittman, Ph.D.

In its opinion accompanying the subject decree, the orphans’ court set

forth the relevant factual and procedural history of this case, which the

testimonial and documentary evidence supports. As such, we adopt it

herein. See Trial Court Opinion, 11/18/15, at 2-5.

By decree dated and entered on November 18, 2015, the orphans’

court involuntarily terminated Mother’s parental rights to E.D.S. and A.M.S.

On December 17, 2015, Mother timely filed notices of appeal and concise

statements of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(a)(2)(i) and (b), which this Court consolidated

sua sponte. The orphans’ court filed its Rule 1925(a) opinion on January 14,

2016.

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

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1. Whether the [orphans’] court improperly denied Mother’s
request to deny Father’s petition to involuntarily terminate
parental rights?

2. Whether the [orphans’] court abused its discretion by
terminating Mother’s parental rights?

Mother’s brief at 9.

We consider Mother’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):

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determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.

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, the orphans’ court terminated Mother’s parental rights

pursuant to Section 2511(a)(1) and (b), which provide as follows:

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

(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. 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).

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We have explained:

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 Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006). Notably,

with respect to the six-month period prior to filing the termination petition:

[T]he trial 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 or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted). In

addition,

Section 2511 does not require that the parent demonstrate both
a settled purpose of relinquishing parental claim to a child and
refusal or failure to perform parental duties. Accordingly,
parental rights may be terminated pursuant to [s]ection
2511(a)(1) if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to perform
parental duties.

In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998). Further,

Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).

Id. at 92 (citation omitted).

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We have explained “parental duties” as follows:

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 encompasses more than a financial
obligation; it 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 that a parent exert himself to take and maintain a place
of importance in the child’s life.

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. 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.

In re B.,N.M., supra at 855 (citations omitted).

Moreover,

It is incumbent upon a parent when separated from his child to
maintain communication and association with the child. This
requires an affirmative demonstration of parental devotion,
imposing upon the parent the duty to exert himself, to take and
maintain a place of importance in the child’s life.

In re G.P.−R., 851 A.2d 967, 976 (Pa. Super. 2004).

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With respect to Section 2511(b), this Court has explained the requisite

analysis 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).

In her first issue on appeal, Mother argues that the orphans’ court

improperly denied her request to dismiss Father’s involuntary termination

petition. On the first day of the termination hearing, before any evidence

was presented, Mother’s counsel made a request on the record in open court

that the court dismiss Father’s petition. See N.T., 6/26/15, at 5-6. Counsel

asserted that, within the six months immediately preceding the filing of the

termination petition, Mother filed a petition for special relief and a petition

for modification of the existing custody order. Id. The orphans’ court

denied Mother’s request, stating, in part, “Well that’s what the record may

show, the record doesn’t necessarily show yet. That’s not in the record.

You are telling me that.” Id. at 5-6.

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Mother cites In re Adoption of M.R.D., 128 A.3d 1249 (Pa. Super.

2015) (en banc), appeal granted, 133 A.3d 293 (Pa. 2016), wherein we

stated that, “All explanations considered, if the parent makes reasonable

attempts to overcome obstacles created by the party seeking termination,

then the parent’s failure to pursue legal action more promptly will not alone

justify termination.” Id. at 1262 (citing In re Adoption of L.J.B., 18 A.3d

1098, 1122 (Pa. 2011)). To the best that we can discern, Mother asserts

that, because she filed a petition to modify custody within six months before

Father filed the termination petition, the court was prohibited from

terminating her parental rights under Section 2511(a)(1).

Contrary to her assertion, M.R.D., supra, is inapplicable for the

proposition Mother asserts. Neither this Court’s decision in that case nor any

case or statutory authority holds that pursuing legal action for custody rights

within six months preceding the filing of a termination petition mandates the

dismissal of the petition. Rather, a trial court “must consider the whole

history of a given case and not mechanically apply the six-month statutory

provision.” In re B.N.M., supra. Therefore, we conclude that the orphans’

court did not err in failing to summarily dismiss Father’s termination petition

and conducting an evidentiary hearing in this case. Mother’s first issue fails.

The evidence presented during the hearing demonstrated that,

following the parties’ marital separation in 2009, an agreed-upon July 15,

2010 custody order granted Father primary physical custody and Mother

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supervised partial physical custody, which she never exercised.2 Trial Court

Opinion, 11/18/15, at 2-3; Petitioner’s Exhibit 1. On December 28, 2012,

Mother filed a petition for emergency relief, wherein she alleged that Father

has alienated E.D.S. and A.M.S. from her. Mother requested joint legal

custody, partial physical custody, and counseling for E.D.S. and A.M.S. Trial

Court Opinion, 11/18/15, at 4; Respondent’s Exhibit 5. This resulted in a

second agreed-upon custody order dated June 24, 2013, which granted

Father sole legal and physical custody. Id.; Petitioners’ Exhibit 5. The order

directed Mother to participate in therapy with a professional selected by the

custody evaluator, Deborah Salem, for the purpose of preparing her to begin

the reunification process with E.D.S. and A.M.S. Trial Court Opinion,

11/18/15, at 4; Petitioners’ Exhibit 5.

The orphans’ court found that, following the June 2013 order, “Mother

demonstrated an inability or unwillingness to follow through, resulting in her

failure to see [E.D.S. and A.M.S.] to this date.” Trial Court Opinion,

11/18/15, at 5. The testimony of Dr. Blackbird, the professional selected by

Ms. Salem, supports the court’s finding. Indeed, Dr. Blackbird testified that

he met with Mother three or four times, and then she discontinued

treatment. N.T., 6/26/15, at 67.

On February 15, 2015, Mother filed a petition for modification of the

June 2013 custody order. The orphans’ court aptly noted that, “[o]ther than

2
The order also granted the parties shared legal custody. Petitioner’s
Exhibit 1.
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a text message shortly before the first [day of the termination] hearing,

Mother has not communicated with [E.D.S. and A.M.S.] since July 12, 2010.”

Trial Court Opinion, 11/18/15, at 5.

Nevertheless, Mother argues in her second issue on appeal that her

conduct did not warrant termination of her parental rights under Section

2511(a)(1). She argues that the court “completely overlooked all of

Mother’s testimony. . . . The [ ] court did not consider the hostile

environment that Father created for Mother and the minor boys while the

parties still lived in the same house.” Mother’s brief at 38. We disagree.

The court explained in its opinion accompanying the subject decree as

follows.

This is not a case where Father rebuffed Mother’s repeated,
plaintive requests to see the boys. To the contrary, the only
“roadblocks” to Mother maintaining contact with the boys and
performing parental duties were two court orders. The 2010
order was entered by stipulation in open court and gave Mother
an easy path to have immediate supervised visits. Her
explanations were hollow regarding her failure to pick up the
phone and call any of the potential supervisors or to ask the
court to name a new one. Instead of swallowing her pride and
moving forward, Mother did nothing and the boys went on with
their lives.

The 2013 order recognized Mother’s failures and set forth a step-
by-step plan. Although she arguably took one step forward by
meeting with Dr. Tegan Blackbird, Mother failed to follow
through with him, providing equally hollow excuses. After
hearing Deb[orah] Salem’s testimony and reviewing her
evaluations, Mother’s actions did not surprise us. Although
much could be said, it all boils down to Mother’s refusal to take
responsibility for any of the problems that brought the parties to
court for custody, [ ] and now the termination of her parental

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rights. The evidence in support of termination is not only clear
and convincing, it is compelling.

Trial Court Opinion, 11/18/15, at 9-10.

Upon review, we conclude that the foregoing factual findings and

credibility determinations against Mother by the court are supported by the

testimonial and documentary evidence. The record overwhelmingly

demonstrates that Mother failed to perform her parental duties since she left

the marital home in July of 2010. Since that time, Mother has neither seen

nor written to E.D.S. or A.M.S. N.T., 7/31/15, at 23, 38-39. She failed to

exercise her agreed-upon supervised partial physical custody set forth in the

July 2010 custody order. Thereafter, she failed to pursue reunification with

her sons by following the agreed-upon June 2013 custody order. Upon

careful review, we discern no abuse of discretion by the orphans’ court in

finding hollow Mother’s explanations for this conduct. Therefore, we reject

Mother’s argument with respect to Section 2511(a)(1).

With respect to Section 2511(b), Mother argues that the termination of

her parental rights does not serve the developmental and emotional needs

and welfare of E.D.S. and A.M.S. because the court “recognized that the

minor boys required continuous counsel[]ing not only for the marital discord

of the parties but because of the minor boys[’] abusive and troubling

childhood in Guatemala. Father does not believe that the minor boys require

counsel[]ing if Mother remains out of their lives.” Mother’s brief at 35. As

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such, Mother argues that, by terminating her parental rights, the court “has

ensured the minor boys will not receive counsel[]ing.” Id. at 55.

In its Rule 1925(a) opinion, the orphans’ court responded as follows.

Ironically, our exchange with counsel at the close of the
proceedings was laden with our concerns that the boys would
need counseling to deal with this situation. [N.T., 10/12/15, at
80-85.] Likewise, we were concerned with the counseling the
boys received over the years. In short, we did consider this, but
the best counseling in the world would only help the boys deal
with Mother’ s actions and inactions -- it would not have changed
the end result of termination.

Trial Court Opinion, 1/14/16, at 8 (footnote omitted).

We agree with the court that, whether or not Father obtains counseling

in the future for E.D.S. and A.M.S. is irrelevant to the termination of

Mother’s parental rights pursuant to Section 2511(b). Indeed, the emphasis

in a Section 2511(b) analysis is on the nature and status of the parent-child

bond and whether severing that bond will be detrimental to the physical,

developmental, and emotional needs and welfare of the child. See In re

Adoption of J.M., supra.

The orphans’ court aptly found:

The record of this case is replete with evidence that there is no
bond between the boys and Mother. Indeed, as noted in
Deb[orah] Salem’s evaluations, to the extent there was a bond,
it was unhealthy. Additionally, Mother could not point to any
evidence that a bond still exists, and her expert failed to
convince us that reunification counseling should be pursued to
see if a bond could be forged. . . .

[W]e are eminently satisfied that [Stepmother] has been the
mother for at least the past four years and is the only one
capable of providing that nurturing relationship alongside of

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Father. In fact, we are more concerned with the impact on the
boys’ relationship with [Stepmother] if we attempted Mother’s
request for reunification counseling. That would be a travesty -
it might serve to assuage Mother’s feelings of guilt, but it would
not to be beneficial to the boys in any way, shape[,] or form.
Indeed, the mere receipt of a text from Mother sent one child
into a near tailspin.[3]

[ ] The evidence is clear, convincing and competent to
demonstrate not only that Mother has failed to perform her
parental duties, but also that termination of Mother’s parental
rights will best serve the boys’ physical, developmental, and
emotional needs and welfare.

Trial Court Opinion, 11/18/15, at 10-11 (emphasis in original).

Upon careful review of the testimonial evidence, we discern no abuse

of discretion by the court in terminating Mother’s parental rights pursuant to

Section 2511(b). Further, we conclude that the entirety of the court

opinions comprehensively expound on Mother’s issues, and we adopt and

incorporate the orphans’ court’s November 18, 2015 and January 14, 2016

opinions with this Memorandum in affirming the termination decree.

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016

3
Father testified that, in May 2015, Mother sent a text message to E.D.S.
wishing A.M.S. a happy birthday. N.T., 6/26/15, at 10. Father testified that
A.M.S. “was so scared [Mother] was going to come and get him. It was
horrible.” Id. at 40.
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 ·-- Circulated 06/30/2016 11:57 AM

IN RE: ADOPTION OF : IN THE COURT OF COMMON PLEAS OF
E.D.S., a minor : CUMBERLAND COUNTY, PENNSYLVANIA

; 19 ADOPTIONS 2015 ./

IN RE: ADOPTION OF IN THE COURT OF COMMON PLEAS OF
A.M.S., a minor CUMBERLAND COUNTY, PENNSYLVANIA

: 20 ADOPTIONS 2015

IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF

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APPELLATE PROCEDURE 1925 ,...::.,
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Masland, J., January 13, 2016:-- - r -

I. Introduction a
. I