J-S82018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF T.T.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.S.S., MOTHER
No. 1130 MDA 2016
Appeal from the Decree June 14, 2016,
in the Court of Common Pleas of York County,
Orphans' Court, at No(s): 2016-0020a
IN THE INTEREST OF T.T.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.S.S., MOTHER
No. 1133 MDA 2016
Appeal from the Order entered June 14, 2016,
in the Court of Common Pleas of York County,
Juvenile Division at No(s): CP-67-DP-0000154-2014.
BEFORE: OTT, DUBOW, PLATT, JJ.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 09, 2016
Appellant, S.S.S. (“Mother”) appeals from the Decree involuntarily
terminating her parental rights to her son, T.T.H. (“Child”), pursuant to the
J-S82018-16
Adoption Act, 23 Pa.C.S. § 2511(a) and (b), and from the Order changing
the permanency goal from reunification to adoption.1 We affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Counsel stipulated to the majority of the pertinent facts. Child was
born in September 2011. At the time Mother and T.B.H., the putative father
(“Father”), were not wed, but have since married.2 On July 24, 2014, the
York County Office of Children, Youth and Families (“the Agency”) filed an
application for emergency protective custody following Mother’s arrest for,
inter alia, attempted murder, robbery, and conspiracy. In an order entered
the next day, the Agency presented sufficient evidence to demonstrate that
continuation or return of Child to either parent was not in Child’s best
interest. The trial court reached the same conclusion in a shelter care Order
dated August 4, 2014, and awarded legal and physical custody of Child to
the Agency. The Agency placed Child in emergency foster care.
On August 6, 2014, the Agency filed a dependency petition, and the
court adjudicated Child dependent on August 11, 2014. The court once
again awarded legal and physical custody to the Agency for placement of
Child in foster care, with a goal of reunification.
____________________________________________
1
This Court sua sponte consolidated Mother’s Appeals.
2
The Orphans’ Court also terminated Father’s parental rights. The Agency
avers that he has not filed an appeal. Agency’s Brief at 6.
-2-
J-S82018-16
Over the ensuing year and a half, the Agency provided Mother with
Family Services Plans (“FSP”). In each subsequent permanency review
Order, the court concluded that Mother had minimally complied with the
FSPs, despite the reasonable efforts made by the Agency, although she did
complete a parenting program offered at the York County Prison.3 As a
result of her incarceration and Father’s minimal compliance with his FSP,
there was a continued need to place Child outside the care of his parents.
On March 8, 2016, the Agency filed a Petition for the Involuntary
Termination of Mother’s Parental Rights (“TPR petition”), pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), and (8), and (b). That same date, the
Agency filed a petition to change the court-ordered goal in the dependency
proceeding to adoption.
On April 29, 2016, Mother pled guilty to attempted robbery and
conspiracy to commit robbery. The court sentenced her to a term of thirty
to sixty months’ incarceration in a state correctional facility.
____________________________________________
3
We note that the Agency caseworker testified at the termination hearing
that since August 2015, Mother had had bi-weekly, half-hour, contact visits
with Child, and spoke with Child on the phone two to three times per month
when she would call Father’s cell phone during Father’s supervised visits
with Child. The case manager also testified that although the visits between
Mother and Child went well, Child’s bond with his foster parents is stronger
than the bond with Mother. See N.T. Hearing, 5/19/16, at 83. The CYS
case manager acknowledged that prison regulations barred Mother from
having visits with Child for the first year of her incarceration due to the
homicide charge pending against Mother.
-3-
J-S82018-16
On May 27, 2016, the Orphans’ Court held an evidentiary hearing on
both Agency Petitions. The Agency presented the testimony of one of its
caseworkers, as well as Child’s therapist, and a family resources specialist.
Mother declined the opportunity to testify on her own behalf. The Agency
stated that it had identified a prospective adoptive family.
At the conclusion of the hearing, the Orphans’ Court took the matter
under advisement. By final decree entered June 14, 2016, the Orphans’
Court terminated Mother’s parental rights based upon Section 2511(a)(1),
(2), (5), and (8), and (b). By order entered that same day, the court
changed the permanency goal to adoption.
These consolidated appeals by Mother follow.
ISSUES ON APPEAL
Mother raises the following issues on appeal:
1. Whether the [Orphans’] court abused its discretion in
terminating parental rights under 23 Pa.C.S.
2511(a)(1)[,] (2)[,] (5)[,] and (8) in that Mother was
incarcerated and performed parental duties to the best
of her ability given her incarceration including contact
visits, telephone contact, and sending cards and letters
to her son and the [Orphans’] Court erred in finding
that termination of the parental rights would best serve
the needs and welfare of [Child] due to [Child] having a
bond with Mother and a bond with siblings.
2. Whether the [Orphans’] court abused its discretion in
changing the court ordered goal in that the change of
goal is not in [Child’s] best interest due to his bond with
Mother and his potential for loss of contact with siblings
and the trial court erred in finding that Mother has
provided no parental duties in that Mother was
incarcerated and performed parental duties to the best
-4-
J-S82018-16
of her ability given her incarceration including contact
visits, telephone contact, and sending cards and letters
to [Child].
Mother’s Brief at 4 (excess capitalization omitted).
Because evidence regarding the permanency plan goal change and
TPR petitions substantially overlap, and the legal standards to be applied are
the same, we will first address Mother’s termination issues. See In the
Interest of R.J.T., 9 A.3d 1179, 1191 n.14 (noting that courts should
combine hearings on these two petitions since the evidence substantially
overlaps and allows for faster permanency for the child).
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). “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. We may reverse a decision based on an abuse
of discretion only upon demonstration of “manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however,
merely because the record would support a different result.” Id. at 827.
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
-5-
J-S82018-16
determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004).
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).
It is well-settled that “a parent’s basic constitutional right to the
custody and rearing of his or her child is converted, upon the failure to fulfill
his or her parental duties, to the child’s right to have proper parenting and
fulfillment of his or her potential in a permanent, health, safe environment.”
In re. B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004). “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. at 855 (citation omitted).
Section 2511 of the Adoption Act provides grounds for the involuntary
termination of parental rights. See 23 Pa.C.S. §§ 2511(a). In order to
affirm the termination of parental rights, this Court need only agree with the
trial court’s conclusion pertaining to any one subsection under Section
2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
-6-
J-S82018-16
Termination Pursuant to Section 2511(a)(2), (5), and (b)
Here, the trial court terminated Mother’s parental rights under Section
2511(a)(1), (2), (5), (8) and (b). We will analyze the trial court’s decision
to terminate Mother’s parental rights under Section 2511(a)(2), (5), and (b),
which provide:
(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:
***
(2) The repeated and continued incapacity, abuse, neglect or
refusal of the parent has caused the child to be without essential
parental care, control or subsistence necessary for his physical
or mental well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent.
***
(5) The child has been removed from the care of the parent by
the court … for a period of at least six months, the conditions
which led to the removal or placement of the child continue to
exist, the parent cannot or will not remedy those conditions
within a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy the
conditions which led to the removal or placement of the child
within a reasonable period of time and termination of the
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
-7-
J-S82018-16
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. § 2511.
This Court has stated:
In order to terminate parental rights pursuant to 23 Pa.C.S. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)
(internal citations omitted).
Our Supreme Court has observed that the Section 2511(a)(2) grounds
for termination must be demonstrated by clear and convincing evidence. In
addition, the Court noted:
A decision to terminate parental rights, never to be made lightly
or without a sense of compassion for the parent, can seldom be
more difficult than when termination is based upon parental
incapacity. The legislature, however, in enacting the 1970
Adoption Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit as one who
refuses to perform the duties.
In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (internal citations and
some internal quotation marks omitted).
With respect to incarceration, our Supreme Court has held:
-8-
J-S82018-16
[I]ncarceration, while not a litmus test for termination, can be
determinative of the question of whether a parent is incapable of
providing “essential parental care, control or subsistence” and
the length of the remaining confinement can be considered as
highly relevant to whether “the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent,” sufficient to provide grounds for
termination pursuant to 23 Pa.C.S. § 2511(a)(2). See e.g.
Adoption of J.J., 515 A.2d [883, 891 (Pa. 1986)] (“[A] parent
who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties.”); [In
re;] E.A.P., 944 A.2d [79,] 85 [(Pa. Super. 2008] (holding
termination under § 2511(a)(2) supported by mother's repeated
incarcerations and failure to be present for child, which caused
child to be without essential care and subsistence for most of her
life and which cannot be remedied despite mother's compliance
with various prison programs). If a court finds grounds for
termination under subsection (a)(2), a court must determine
whether termination is in the best interests of the child,
considering the developmental, physical, and emotional needs
and welfare of the child pursuant to § 2511(b). In this regard,
trial courts must carefully review the individual circumstances for
every child to determine, inter alia, how a parent's incarceration
will factor into an assessment of the child's best interest.
Id. at 830-31.
In the instant case, the Orphans’ Court observed that Mother has been
incarcerated since July 2014 when the Child was adjudicated dependent, and
recently received a sentence for thirty to sixty months’ incarceration.
Mother has provided no parental duties for the minor child for
the past two (2) years and will not be able to so until she is
released from prison.
***
Overall, Mother has made no progress … towards alleviating the
circumstances which caused the minor child to be placed and
[has] not assumed any major parental duties for minor child.
***
Neither parent is in a position to obtain custody of the minor
child at this time. The minor child is currently residing with a
-9-
J-S82018-16
foster family and testimony established that the child is
comfortable in their home. Minor child has a bond with the
foster family and looks to them for comfort and security.
The [c]ourt finds that the conditions which led the minor child to
placement outside the care and custody of Mother … continue to
exist. Mother has been incarcerated since the adjudication of
dependency and has made no progress towards alleviating the
circumstances which initially led to minor child’s placement.
…[T]he [c]ourt finds that the Agency clearly and convincingly
established that termination of parental rights is justified
pursuant to Sections 2511(a)(2), (5), and (8) of the Adoption
Act.
Adjudication, dated 6/14/16, at 9-13.
Mother argues that the Orphans’ Court erred in terminating her
parental rights pursuant to Section 2511(a)(2) and (5) because “mother was
the primary care giver prior to her incarceration,” and “has time served and
will not be incarcerated in state prison long before she is released.”
Appellant’s Brief at 14-15.4 She also avers that “Mother believes that since
she has been sentenced, she now has a good idea of how long she will be
incarcerated and feels it is reasonable to wait to save the mother[/]son
bond.” Id. at 15.
Since the dependency adjudication hearing in July 2014, when child
was just two years old, up to the day of the involuntary termination hearing
in May 2016, Mother has been incarcerated. Her ability to see Child twice a
____________________________________________
4
Mother does not provide any details to support her averment that she will
not be “in state prison long.” The record is devoid of any indication as to
Mother’s potential release date in consideration of credit for time served.
- 10 -
J-S82018-16
month does not provide Mother with the capability of providing essential
parental care, control or subsistence. Without evidence of when Mother will
be released, it is speculative for her to assert that the trial court erred in
involuntarily terminating her rights because her prison sentence will not be
long. She received her sentence of thirty to sixty months’ incarceration just
weeks before the parental rights termination hearing, after Child had already
lived half his life away from Mother. Unfortunately, the “conditions which led
to the removal . . . of the child continue to exist,” Mother “cannot or will not
remedy those conditions within a reasonable period of time, the services or
assistance reasonably available to the parent are not likely to remedy the
conditions which led to the removal or placement of the child within a
reasonable period of time[,] and termination of [Mother’s] parental rights
would best serve the needs and welfare of the child.” 23 Pa.C.S. §
2511(a)(2) and (5).
Most importantly, as noted above, “parental rights are not preserved
by waiting for a more suitable . . . time to perform one’s parental
responsibilities while others provide the child with her physical and
emotional needs.” In re. B., N.M., 856 A.2d at 855.
Accordingly, the court did not abuse its discretion in terminating
Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and (5).
- 11 -
J-S82018-16
Termination Pursuant to Section 2511(b)
We also agree with the Orphans’ Court’s determination that the
Agency met its burden under 23 Pa.C.S. § 2511(b), and that terminating
Mother’s parental rights is in the best interest of Child.
With respect to Section 2511(b), our analysis shifts focus from
parental actions in fulfilling parental duties to the effect that terminating the
parental bond will have on the child. 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 (Pa. Super. 2005), this Court found
that “intangibles such as love, comfort, security, and stability are involved in
the inquiry into the needs and welfare of the child.” Id. at 1287 (citation
omitted). In addition, the Orphans’ 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. (citation omitted).
In the instant case, the Orphans’ Court found that Mother’s bond with
Child has diminished due to her incarceration and, accordingly, the court
found that termination of her parental rights would not have a negative
impact on Child. The court further found that a healthy bond existed
between Child and the foster parents:
The Court has thoroughly evaluated [Child’s] relationships
in this matter. . . . The Court finds that [Child] had a
bond with Mother but that bond has diminished since
- 12 -
J-S82018-16
Mother’s incarceration. It is the foster parents who
provide for [Child]’s daily needs and act as [his] parental
figures. [Child] looks to the foster family for security and
is upset when he has to leave their care. At this point, the
Court believes that termination of Mother’s . . . parental
rights will have no negative impact of [Child]. The Court
also finds that the bond between the foster parents is
strong and healthy. Testimony established that [Child] is
happy in their care. The bond that [Child] has with the
foster parents can provide safety, security and
permanency for [Child]. Termination of parental rights will
best meet the needs of [Child] and permit [him] to achieve
the stability that he deserves.
Adjudication, at 14-15.
Mother argues that the Orphans’ Court erred in concluding that
termination of her parental rights would best serve the needs and welfare of
Child because “[Child] has a bond with [Mother] and a bond with siblings.”
Mother’s Brief at 10. According to Mother, she still possesses her parental
rights to Child’s older sister and, by severing her parental rights to Child, the
Orphans’ Court “has also effectively terminated rights to the older siblings,
which [Mother] feels is an abuse of discretion and does not serve the needs
and welfare of [Child].” Id. at 18.
Based on the testimony of the Agency’s witnesses, the Orphans’ Court
acknowledged a bond between Mother and Child, but found that the bond
had “diminished over time due to her incarceration preventing frequent
visitation.” Trial Court Opinion, dated 8/3/16, at 1. The Orphans’ Court also
reiterated its conclusion that Child “has a closer bond with the foster parents
and would go to [them] over Mother when seeking comfort and care.” Id.
Finally, our review of the record supports the court’s further conclusion that
- 13 -
J-S82018-16
testimony at the TPR hearing “established that [Child] has regular contact
with his siblings and extended family members and that the foster parents
intend to continue said contact.” Id. Thus, Mother’s claim regarding Child’s
potential loss of a bond with his siblings fails.
Finally, with respect to the trial court’s decision to change Child
permanency goal to adoption, we note that when considering a goal change
Motion the court looks to the best interests of the child rather than those of
the child’s parents. See R.J.T., 9 A.3d at 1183-84. The Agency must
establish that the requested goal change option is best suited to the child’s
safety, protection, and physical, mental, and emotional welfare. Id.
In light of our above analysis, we conclude that the Orphans’ Court did
not err in changing Child’s permanency goal to adoption.
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
and convincing evidence that Mother’s parental rights should be terminated
pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b), and did not err in
changing the permanency goal to adoption.
- 14 -
J-S82018-16
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
- 15 -
In Re: Adoption of T.T.H., a Minor
Combined Opinion