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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.O. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: LACKAWANNA COUNTY :
DEPARTMENT OF HUMAN SERVICES, :
OFFICE OF YOUTH & FAMILY :
SERVICES :
:
: No. 502 MDA 2016
Appeal from the Order Entered March 7, 2016
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No(s): A-2-2016
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 09, 2016
The Lackawanna County Department of Human Services, Office of
Youth and Family Services (“the Agency”), appeals from the March 7, 2016
order denying its petition for the involuntary termination of parental rights of
L.O. (“Mother”), with respect to her daughter, A.O., born in January 2010.
We reverse and remand.1
____________________________________________
* Former Justice specially assigned to the Superior Court.
1
We observe that the child’s guardian ad litem, at the conclusion of the
testimonial evidence, recommended that the orphans’ court involuntarily
terminate Mother’s parental rights. See N.T., Hearing, 1/26/16, at 72.
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The Agency filed the subject petition on January 7, 2016, wherein it
requested the involuntary termination of Mother’s parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(1), (8), and (b). On that same date, the Agency filed
a petition to confirm consent to adoption with respect to J.S. (“Father”). A
hearing on the petitions occurred on January 26, 2016, during which the
Agency presented the testimony of Nicholas Robinson, an Agency
caseworker; Michelle Mancuso, a detective with the Lackawanna County
District Attorney’s Office; and Nikki Ganczarski, an Agency caseworker.
Mother attended the hearing, but she did not present any evidence. Father
did not attend the hearing, but he was represented by counsel who was
excused from the proceedings by the orphans’ court after it ruled, on the
record and in open court, to confirm Father’s consent to the adoption of A.O.
See N.T., Hearing, 1/26/16, at 15-16.
The record reveals that A.O. has been adjudicated dependent on three
separate occasions in her six years of life due to Mother’s illegal drug use;
that is, on January 21, 2011, which was discharged on September 29, 2011;
on November 10, 2011, which was discharged on July 8, 2013; and most
recently, on June 12, 2014. She had been in placement for twenty
consecutive months by the time of the subject proceedings. See N.T.,
1/26/16, at 17. In total, A.O. had been in placement for 37 months—half of
her life. See id. at 18.
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Detective Mancuso testified with respect to the incident that occurred
on May 31, 2014, that resulted in A.O.’s most recent placement, and in
Mother’s incarceration until November 18, 2015. See id. at 19. The
detective was part of a team on that date that executed a search warrant at
Mother’s residence for drug paraphernalia. See id. at 44. Mother and A.O.
were not home when the search team arrived. See id. at 45. When she did
arrive home, Detective Mancuso testified that, “Mother took off in her
vehicle.” Id. Detective Mancuso and her colleague pursued Mother in a car
that had emergency lights and sirens activated. See id. at 46. She testified
that Mother drove erratically, and she went through three stop signs until
she came to a stop. See id. Detective Mancuso testified that Mother
“refused to get out of the car with our commands. At that point, I did see
the child in the back seat; a young child, unrestrained.” Id. She explained
that the child was not in a safety seat or restrained by a seatbelt. See id. at
46-47. Detective Mancuso testified that her colleague “tased” Mother
through the open door of her vehicle, and they then took Mother into
custody. Id. at 47. She testified that her colleague retrieved “some heroin
out of her, I think it was [in] her pocketbook, or maybe her pants[.]” Id. at
48. Detective Mancuso testified that she subsequently retrieved from Mother
“approximately 210 bags of heroin, from her pants. . . .” Id. at 49.
Thereafter, Detective Mancuso placed A.O. into the custody of the Agency.
See id. at 50.
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At the conclusion of the evidence, the orphans’ court ruled on the
record in open court to deny the Agency’s petition for the involuntary
termination of Mother’s parental rights. See id. at 72-73. In addition, upon
request by the Agency’s counsel, the orphans’ court held in abeyance its
ruling that granted the Agency’s petition to confirm Father’s consent to
adoption. See id. at 76-77.
On February 24, 2016, the court issued a written decision and order
regarding the Agency’s petitions, which was entered on the orphans’ court’s
docket on March 7, 2016. On March 29, 2016, the Agency timely filed a
notice of appeal and a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The orphans’ court then filed a
Rule 1925(a) opinion.
The Agency presents the following issues for our review:
I. Whether the orphans[’] court erred by not considering the
ASFA guidelines, the previous court orders and that the child has
been in placement for thirty-seven months, more than half her
life and denies the child permanency, committing an error of
law?
II. Whether the orphans[’] court erred as a matter of law by not
doing an analysis of the best interests of the child?
III. Whether the decision of the orphans[’] court is against the
weight of the evidence in that Mother did not testify nor had any
other witnesses on her behalf?
IV. Whether the orphans[’] court erred by not stating, in the
alternative, how much time Mother was to receive in order to
attempt to complete the requirements of the permanency plan,
an abuse of discretion?
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V. Whether the orphans[’] court erred and abused its discretion
by not considering that the Mother had repeated periods of
incarceration in relapse, never making progress toward
reunification?
VI. Whether the orphans[’] court erred by finding that Mother
had not had sufficient time to complete reunification, which is
contrary to the evidence presented?
VII. Whether the orphans[’] court erred and committed an abuse
of discretion by misapplying the cases cited in its decision?
Mother’s Brief at 6.
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 (“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
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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 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).
Instantly, the relevant provisions of the Act are 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.
...
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the
date of removal or placement, the conditions which led to
the removal or placement of the child continue to exist
and termination of parental rights would best serve the
needs and welfare of the child.
...
(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
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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), (8), (b).
Parental rights may be terminated pursuant to Section 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 C.M.S., 832 A.2d
457, 462 (Pa. Super. 2003) (emphasis in original) (citation omitted). Our
Supreme Court has held that
[o]nce 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).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988). Further,
the 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 N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
The following factors must be demonstrated when seeking termination
under Section 2511(a)(8):
(1) the child has been removed from parental care for 12
months or more from the date of removal; (2) the conditions
which led to the removal or placement of the child continue to
exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.
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In re Adoption of M.E.P., 825 A.2d 1266, 1275–1276 (Pa. Super. 2003)
(citation omitted). See also 23 Pa.C.S.A. § 2511(a)(8).
“Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.” In re
A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the twelve-month period
has been established, the court must next determine whether the conditions
that led to the child’s removal continue to exist, despite the reasonable good
faith efforts of the agency supplied over a realistic period. See id. “[T]he
relevant inquiry in this regard is whether the conditions that led to removal
have been remedied and thus whether reunification of parent and child is
imminent at the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa. Super.
2009) (citations omitted). This Court has acknowledged that
the application of Section (a)(8) may seem harsh when the
parent has begun to make progress toward resolving the
problems that had led to removal of her children. By allowing for
termination when the conditions that led to removal continue to
exist after a year, the statute implicitly recognizes that a child’s
life cannot be held in abeyance while the parent is unable to
perform the actions necessary to assume parenting
responsibilities. This Court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.
In re J.F.M., 71 A.3d 989, 997 (Pa. Super. 2013) (quoting I.J., 972 A.2d
at 11–12).
With respect to the “needs and welfare” analysis pertinent to
subsections (a)(8) and (b), we have observed:
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[I]nitially, the focus in terminating parental rights is on the
parent, under Section 2511(a), whereas the focus in
Section 2511(b) is on the child. However, Section 2511(a)(8)
explicitly requires an evaluation of the “needs and welfare of the
child” prior to proceeding to Section 2511(b), which focuses on
the “developmental, physical and emotional needs and welfare of
the child.” Thus, the analysis under Section 2511(a)(8) accounts
for the needs of the child in addition to the behavior of the
parent. Moreover, only if a court determines that the parent’s
conduct warrants termination of his or her parental rights,
pursuant to Section 2511(a), does a 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.” Accordingly, while both
Section 2511(a)(8) and Section 2511(b) direct us to evaluate
the “needs and welfare of the child,” we are required to resolve
the analysis relative to Section 2511(a)(8), prior to addressing
the “needs and welfare” of [the child], as proscribed by
Section 2511(b); as such, they are distinct in that we must
address Section 2511(a) before reaching Section 2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1008–1009 (Pa. Super. 2008) (en
banc) (citations omitted). “Section 2511(a)(8) does not require an
evaluation of the remedial efforts of either the parent or [the agency].” In
re B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (citing C.L.G., 956 A.2d at
1007).
Finally, this Court has explained the requisite analysis under Section
2511(b) 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
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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 this case, the orphans’ court concluded that Mother did not fail to
perform her parental duties under Section 2511(a)(1). It explained as
follows:
Given Mother’s not insignificant substance abuse history, which
has led to periods of incarceration and rehabilitation, and the
undisputed testimony that Mother has either complied with or
was physically unable to comply with all tasks enumerated under
A.O.’s court-approved permanency plan, we found that Mother
had insufficient time to correct the problems leading to the
child’s removal.
Trial Court Opinion, 4/6/16, at 5.
With respect to Section 2511(a)(8), the court explained as follows.
[The Agency] failed to prove that “the conditions which led to
the removal or placement of [A.O.] continue to exist.” [The
Agency] caseworkers testified that Mother’s drug abuse and,
specifically, the incident on May 31, 2014 that led to Mother’s
incarceration, necessitated A.O.’s current placement in foster
care. They failed to show, however, that these circumstances
continue to exist. While Mother may struggle with addiction for
the rest of her life, the testimony showed that, since her
incarceration began nearly two years ago, she has taken
advantage of the opportunities afforded to her to improve the
parent-child relationship. Though Mother may not yet be
prepared or even equipped to assume all parental caretaking of
A.O., we cannot involuntarily terminate her parental rights on
this ground alone.
Id. at 6.
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In its first, second, fifth, and sixth issues, the Agency argues that the
orphans’ court erred in denying its petition for the involuntary termination of
Mother’s parental rights because it denies A.O. permanency. Specifically, the
Agency argues that Mother has had repeated periods of drug relapse and
incarceration during A.O.’s life, which has resulted in the child being
adjudicated dependent on three separate occasions and being in placement
for half of her life. Further, the Agency argues that A.O. is in foster care with
a pre-adoptive family. For the following reasons, we hold that the orphans’
court abused its discretion in concluding that Mother’s conduct did not
warrant termination of her parental rights pursuant to Section 2511(a)(1)
and (8).
Ms. Robinson, the Agency caseworker from May 2014 until October
2015, testified that, during A.O.’s three dependencies, Mother’s Family
Service Plan (“FSP”) objectives remained consistently to (1) obtain mental
health treatment; (2) attend drug and alcohol counseling; and (3)
participate in parenting classes. See N.T., 1/26/16, at 20, 21-22, 36-39.
Ms. Robinson testified that Mother participated in the services requested by
the Agency and/or ordered by the court since A.O.’s first dependency in
January 2011. See id. at 39-41. By the time of Mother’s arrest on May 31,
2014, for possession of heroin, she had participated in four separate
rehabilitation programs. See id. at 41. She testified on cross-examination as
follows:
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Q. So would it be fair to say that [M]other has trouble . . .
staying drug and/or alcohol free without having to attend some
type of court-ordered program?
...
A. I would find that fair to say. The few times that, you know,
[Mother] has had the child and, . . . that we haven’t had
dependency of the child, was when she was under supervision of
the criminal justice system or incarcerated.
Id. at 41-42. Indeed, Ms. Robinson testified on direct examination:
Q. So when we’re talking about compliance and progress, does
[M]other have more of an issue complying with the request that
you lay out for her or making progress based on compliance?
A. Making progress and keeping it, so to say.
Id. at 22.
Like Ms. Robinson, Ms. Ganczarski, the Agency caseworker from
October 2015 through the time of the hearing, testified that Mother has had
“the same consistent tasks” in her FSP plan over the years of A.O.’s
dependencies. Id. at 61. She testified, in part, that Mother has been
“through multiple rehab facilities. . . . So she has been through numerous
providers, and we do still have the concern for [M]other’s ability to maintain
[sobriety]. She has not shown a history of being able to maintain stability,
both with the mental health or with the drug and alcohol treatments.” Id.
Ms. Ganczarski testified that Mother contacted her shortly after her
release from prison on November 18, 2015. They met on November 24,
2015, at which time they reviewed Mother’s FSP objectives. See id. at 55.
By the time of the hearing, she rated Mother’s compliance as moderate, but
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her progress as minimal because she could not “rate if [Mother is] able to
maintain the sobriety and stability long-term.” Id. at 59. Importantly, Ms.
Ganczarski testified that Mother is on parole until May 2020.2 Id. at 60. She
testified as follows:
Q. Do you believe that the minor child can safely be returned
home with [M]other at this point?
A. No, I do not believe she can be safely returned at this point.
Mother has not . . . consistently been able to show that she can
maintain her mental health or sobriety on a long-term basis.
Mother . . ., while she’s either incarcerated or under the
supervision of parole or probation, she’s been able to . . .
maintain sobriety, however, when she is not, it is when the
concerns arise. So I would need to be able to see that [M]other
is able to maintain long-term before the child can safely be back
with [her].
Id. at 59-60.
Ms. Ganczarski testified that A.O. began visiting with Mother in
October 2015, for a total of three visits before Mother was released from
prison.3 See id. at 65. She testified that Mother has also had three
supervised visits since her release from prison. See id. at 64. Although Ms.
Ganczarski did not supervise any of the visits between Mother and A.O., she
____________________________________________
2
Ms. Ganczarski testified that Mother meets weekly with her parole officer,
maintains a curfew, and has had negative drug screens conducted by the
parole officer. See N.T., Hearing, 1/26/16, at 60.
3
Ms. Ganczarski implied in her testimony that visitation was not permitted
between Mother and A.O. for an unspecified time-period because of Mother’s
conviction on charges for child endangerment stemming from the May 31,
2014 incident. See id. at 65-66.
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testified that, to her knowledge, Mother has acted appropriately during the
visits, and that “[t]here [were] no reports of fear between child and
mother.” Id. at 66-67. In addition, Ms. Ganczarski testified that Mother has
been cooperative during her interactions with her. See id. at 67.
Ms. Ganczarski testified that A.O. has been in the same foster home
for twenty consecutive months at the time of the termination hearing, where
she had also resided during her prior placement, which was for sixteen
consecutive months. See id. at 68. Ms. Ganczarski testified that she has
observed A.O. in the foster home since June 2015. See id. at 69-70. She
testified that A.O. is bonded to her foster family, and that she refers “to
foster mom as her mother.” Id. at 69.
Based on the foregoing testimonial evidence, we conclude that the
orphans’ court abused its discretion in determining that Mother’s conduct did
not warrant termination under Section 2511(a)(1) for failure to perform her
parental duties. In concluding that “Mother had insufficient time to correct
the problems leading to the child’s removal[,]” the court patently failed to
consider the entire history of this case. The evidence demonstrated that
Mother had the same FSP objectives for half of A.O.’s life, for a total of 37
months, and maintained sobriety only when incarcerated or under
supervision by the criminal justice system.
Likewise, we conclude that the court abused its discretion in failing to
terminate Mother’s parental rights pursuant to Section 2511(a)(8). By the
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time of the hearing, A.O. had been in placement for twenty consecutive
months, which was far in excess of the statutory minimum. Because of
Mother’s significant drug addiction history, reunification between Mother and
A.O. was not imminent at the time of the hearing. Therefore, the conditions
that led to A.O.’s placement continued to exist. Finally, the testimonial
evidence overwhelmingly demonstrates that involuntarily terminating
Mother’s parental rights would best serve the needs and welfare of A.O. by
providing her with permanence and stability in the home of her foster
parents, who are a pre-adoptive resource. See N.T., Hearing, 1/26/16, at
17. Although the evidence revealed that Mother has been cooperative with
the Agency since her release from prison and that she has been complying
with her FSP and parole requirements, we “cannot and will not subordinate
indefinitely [A.O.]’s need for permanence and stability to [Mother]’s claims
of progress and hope for the future.” In re J.F.M., supra.
Accordingly, we reverse the subject order insofar as it denied the
Agency’s petition for the involuntary termination of Mother’s parental rights
pursuant to 23 Pa.C.S.A § 2511(a)(1) and (8).4 We remand this matter to
the orphans’ court to consider, in timely fashion, A.O.’s “developmental,
physical and emotional needs and welfare” pursuant to 23 Pa.C.S.A §
____________________________________________
4
Based on this disposition, we need not consider the Agency’s remaining
issues on appeal.
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2511(b) and pertinent case5 authority.6 Thereafter, the court shall promptly
enter a new order regarding the involuntary termination of Mother’s parental
rights and Father’s consent to adoption.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
____________________________________________
5
See, e.g., In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (“[I]f the grounds
for termination under subsection (a) are met, a court ‘shall give primary
consideration to the developmental, physical and emotional needs and
welfare of the child.’ 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include ‘[i]ntangibles such as
love, comfort, security, and stability.’ In re K.M., 53 A.3d 781, 791 (Pa.
Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court
held that the determination of the child’s ‘needs and welfare’ requires
consideration of the emotional bonds between the parent and child. The
‘utmost attention’ should be paid to discerning the effect on the child of
permanently severing the parental bond.”)
6
Ms. Ganczarski, an Agency caseworker, testified that A.O. is bonded with
her foster family, stating, “[s]he appears to be a part of the family and to
have a good connection and to be very stable and happy and safe in their
environment.” N.T., Hearing, 1/26/16, at 69.
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