In Re: L.L., a Minor

J-S12013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.B., MOTHER :
:
:
:
:
: No. 1726 MDA 2016

Appeal from the Order Entered October 6, 2016
In the Court of Common Pleas of Adams County
Orphans’ Court at No(s): RT-9-16(A)

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J. FILED MARCH 03, 2017

E.B. (“Mother”) appeals from the order entered1 in the Adams County

Court of Common Pleas involuntarily terminating her parental rights to her

son, L.L. (“Child”), born in July 2009.2 We affirm.3

____________________________________________

1
Mother’s notice of appeal states that the order terminating her parental
rights and changing the goal to adoption “has been entered in the docket….”
Notice of Appeal, filed 10/14/16. The certified docket entries indicate only
that the order’s “File Date” was October 5, 2016. See Case Display Report,
at 1 (document #37 in certified record).

“[N]o order of a court shall be appealable until it has been entered upon
the appropriate docket in the lower court.” Pa.R.A.P. 301(a)(1). The entry of
an order and the specific date of entry is defined in Rule 108(b): “The date
of entry of an order in a matter subject to the Pennsylvania Rules of Civil
Procedure shall be the day on which the clerk makes the notation in the
docket that notice of entry of the order has been given as required by
Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b). Rule 236(b) requires that “[t]he
prothonotary shall note in the docket the giving of the notice….” “Thus,
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)

pursuant to the express terms of the rules, an order is not appealable until it
is entered on the docket with the required notation that appropriate notice
has been given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa.
1999) (citations omitted). See also G. Ronald Darlington, et al.,
Pennsylvania Appellate Practice § 108:10, Volume 20 (2016-2017 ed.).
“[T]his is a bright-line rule, to be interpreted strictly.” In re L.M., 923 A.2d
505, 509 (Pa. Super. 2007).

The Court of Common Pleas of Adams County’s docket entries do not
comply with Rule 236(b). As noted, the entry simply indicates the “File
Date.” There is no indication in the docket entries when the Prothonotary
provided notice to the parties. Handwritten on the order is a notation, dated
“10/6/16,” that “CERT COPIES” were sent to the attorneys and parties
involved. Order, dated 9/27/16, and filed 10/5/16. That is an incorrect
procedure as it defies explicit procedural requirements mandated in the
rules. “The procedural requirements reflected in the rules serve to promote
clarity, certainty and ease of determination, so that an appellate court will
immediately know whether an appeal was perfected in a timely manner,
thus eliminating the need for a case-by-case factual determination.”
Frazier, 735 A.2d at 115 (citation omitted). And the Court cautioned the
fact “that the parties may have received notice of the order does not alter
the formal date of its entry and the associated commencement of the period
allowed for appeal for purposes of the rules.” Id.

As explained above, the appeal period in this case was never formally
triggered. See Frazier; In re: L.M. It would, however, be a waste of
judicial resources to remand this matter now solely for the proper filing and
notation of Rule 236(b) notice. Accordingly, in the interest of judicial
economy, we will regard as done what should have been done and address
this appeal on the merits. See id., at 509 (addressing appeal on merits
where notice of appeal was filed well after entry of the order where the
docket did not show providing of notice).

But we caution the Clerk of Courts of the Court of Common Pleas of Adams
County to comply with Rule 236(b). Otherwise, the Clerk of Courts is
entering orders without triggering appeal periods. And that is simply
unacceptable.

We direct the Honorable Michael A. George to provide a copy of this
decision to Kelly A. Lawver, the Clerk of Courts of Adams County.

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The orphans’ court set forth findings of fact, which the testimonial

evidence supports. Therefore, we adopt the court’s findings herein. See

Findings of Fact, 9/27/16, at ¶¶ 1-30.

By way of procedural background, Child was referred to York County

Children and Youth Agency on July 28, 2014, at which time he was five

years old. See Findings of Fact, 9/27/16, at ¶ 1. The referral alleged that

Mother was under the influence of controlled substances, and that she and

Child were living in a motor vehicle. See id., at ¶ 3. On July 29, 2014, the

York County Court of Common Pleas placed Child in emergency protective

custody, and he was immediately placed in kinship care. See id., at ¶ 4.

Child was adjudicated dependent on August 18, 2014, and a

permanency plan of reunification was established. See id., at ¶ 7. Mother

was directed to satisfy the following Family Service Plan (“FSP”) goals:

obtain and maintain safe and stable housing; undergo drug and alcohol

evaluation and assessment and follow through with all treatment

recommendations; undergo random drug testing; cooperate in a

psychological evaluation and with family support services at Pressley Ridge;

participate in Child’s medical and educational appointments. See N.T.,
_______________________
(Footnote Continued)
2
By separate order, the orphans’ court terminated the parental rights of J.L.
(“Father”). Father did not file a notice of appeal.
3
We observe that the Guardian Ad Litem filed a letter in support of the
appellee brief of Adams County Children and Youth Services (“CYS”),
wherein it argues in support of the subject order.

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Hearing, 9/8/16, at 30. On October 23, 2014, the Adams County Court of

Common Pleas accepted jurisdiction of this dependency case because Mother

had established residency in Adams County. See Findings of Fact, 9/27/16,

at at ¶ 10.

On July 15, 2016, CYS filed a petition for the involuntary termination

of Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

(8), and (b) and to change Child’s placement goal to adoption. The court

held an evidentiary hearing on September 8 and 9, 2016, during which CYS

presented the following witnesses: Kayla Smith, the supervisor at York

County Children and Youth Agency; Carolynne Saum, a CYS caseworker;

Lori Dewald, a licensed behavior specialist who served as Child’s therapist;

B.K., Child’s foster mother; and Samantha Myers, a social worker at Bethany

Christian Services. Mother testified on her own behalf, and she presented

the testimony of her mother, M.D. (“Maternal Grandmother”).

The orphans’ court involuntarily terminated Mother’s parental rights.

Mother timely filed a notice of appeal4 and a concise statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate

____________________________________________

4
Mother’s notice of appeal states that she is appealing “from the order
entered in this matter on the 20th day of September, 2016.” Notice of
Appeal, filed 10/14/16. There is no order from September 20, 2016. As
noted in footnote one, the order was dated September 27, 2016, and
entered on the docket on October 5, 2016.

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Procedure 1925(a)(2)(i) and (b). The orphans’ court filed a Rule 1925(a)

opinion.

We review Mother’s appeal according to the following standard:

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):
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.

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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

We need only agree with the orphans’ court as to any one subsection

of Section 2511(a), as well as Section 2511(b), in order to affirm. See In re

B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we

conclude that the certified record supports the decree pursuant to Section

2511(a)(1) and (b), which provides 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).

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

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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) (citation

omitted). 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).

With respect to Section 2511(b), this Court has stated that,

“[i]ntangibles such as love, comfort, security, and stability are involved in

the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d

1284, 1287 (Pa. Super. 2005) (citation omitted). Additionally, 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. (citation omitted).

On appeal, Mother argues that the orphans’ court abused its discretion

in terminating her parental rights pursuant to Section 2511(a)(1) because

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she had found employment and suitable housing, maintained her own

transportation, and she had overnight visits with Child. See Mother’s Brief,

at 14. We disagree.

The orphans’ court found that “it appeared Mother . . . moved in a

positive direction in addressing her substance abuse issues” until the spring

of 2015, when she “was involuntarily discharged from her treatment

placement and consequently had not completed her drug and alcohol

treatment.” Trial Court Opinion, 10/31/16, at 3-4. The court continued as

follows:

By mid-September, 2015, Mother had further deteriorated in
meeting reunification expectations. Although there were no
positive test results for use of controlled substances, she did
have four absences from appointments with the Agency which
would have included random drug testing. She did finally
complete a drug and alcohol evaluation which revealed a need
for outpatient treatment[;] however, once again [she] failed to
follow through with treatment. She was ultimately discharged by
the drug and alcohol treatment provider due to non[-
]attendance. At a permanency review hearing on September 15,
2015, she promised the [c]ourt that drug and alcohol sessions
would probably resume. Yet [as] of the date of [the] termination
hearing, she could not provide any proof of honoring her
representation.

Id., at 4.

At the time of the termination hearing, the court found that Mother’s

progress in satisfying the permanency plan was as follows:

Mother has stabilized her housing[;] however, at the time of the
termination hearing, [she] was collecting unemployment. As
mentioned, despite her earlier indication to the [c]ourt that she
would probably resume drug and alcohol counseling, she has
been unable to provide any proof of the same. She has not

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followed through with obtaining a mental health evaluation or
counseling nor has [she] ever made any effort to cooperate with
family support services at Pressley Ridge. She has not attended
medical appointments, meetings with the child’s counselors, or
involved herself in the child’s educational programming. Her
visitations, including overnight scheduled visitations, have been
sporadic. Meanwhile, [Child] continues to thrive in a foster
setting and has continued to bond with his foster parents. . . .
However, [Child’s] soiling incidents have continually increased
during the time periods consistent with the visits between [him]
and Mother. At the time of the termination hearing, [Child] was
in the care of [CYS] for 27 months since original placement with
Mother yet having accepted the responsibility of performing
parental duties.

This history reveals a pattern of promises on the part of Mother
followed by a lack of any affirmative action.

Id., at 5-6.

Upon thorough review, the testimony of Carolynne Saum, the CYS

caseworker, supports the court’s findings. Significantly, the record reveals

that, at the time of his placement, Child had severe tooth decay, which

caused him to have trouble eating and to have sensitivity to extreme hot

and cold. See N.T., 9/8/16, at 21-22, 32-33. As a result, Child needed to

have multiple baby teeth extracted. See id., at 22, 32, 49-50. Ms. Saum

explained that, approximately four months before the termination hearing,

Child had spacers put in his mouth to stabilize his teeth. See id., at 52. She

testified, “there is a concern [Mother] just isn’t aware of what the long-term

needs are as far as” Child’s teeth. Id.

In addition, Kayla Smith, the supervisor at the York County Children

and Youth Agency, testified that, at the time of Child’s placement, “[h]e had

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been defecating in his pants and having some behavioral problems after

phone calls with mom. . . .” N.T., Hearing, 9/8/16, at 23. Ms. Saum testified

that, beginning sometime between October to December 2015, Child “really

regressed as far as . . . his behaviors and soiling incidents after visitation”

with Mother. Id., at 55. She explained:

[H]e had bed wetting at night for the life of the case, and it still
is something that is being worked on with him today. He had
started defecating more during that October to December
timeframe. He would be, after visits with mom, sometimes very
regressi[ve] in his independence. He would say he couldn’t do
things by himself, and then . . . in February [of 2016], he was
having . . . some significant tantrums.

Id., at 56. Ms. Saum testified that Child’s behavior “correlated to either a

missed visit with mom or occurring in the few days after visitation with his

mom.” Id. Further, Ms. Saum stated that Child’s family doctor ruled out a

medical reason for his soiling. See id., at 68. She explained that Child

participated in a psychological evaluation, and “the evaluator felt that

[Child’s soiling] was probably like a psychological and a psycho[-]emotional

reason. . . .” Id. Ms. Saum testified that Child’s soiling incidents continued

through 2016. Id.

The record reveals that Child has participated in outpatient counseling

throughout the history of this case, and that he continued to attend

counseling every week at the time of the termination hearing. See id., at

71. Ms. Saum testified that Child’s current provider, Pennsylvania

Behavioral Health, recommended family sessions with Mother. See id., at

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71-72. She testified that when the provider “reached out to [Mother], they

had no response. So that would be something ongoing that we were

intending having Mother do[,] but she never followed through with that.”

Id., at 72.

Indeed, Ms. Saum testified that Mother has not recently “been

involved with [Child’s] counseling . . . appointments.” Id., at 73. Further,

she testified that Mother has never been involved in Child’s academic

progress, despite CYS providing her with the contact information of Child’s

teachers. See id. As such, Ms. Saum testified that Mother had been in

minimal compliance with the permanency requirement to attend Child’s

medical and educational appointments. See id., at 74.

Based on the totality of the testimonial evidence, we discern no abuse

of discretion by the orphans’ court in concluding that Mother failed or

refused to perform her parental duties far in excess of the statutory six-

month period under Section 2511(a)(1). Therefore, Mother’s first issue fails. 5

____________________________________________

5
Based on this disposition, we need not review Mother’s issues with respect
to Section 2511(a)(5) and (8). See In re B.L.W., supra. Moreover, Mother
did not preserve a challenge to those subsections in her concise statement of
errors complained of on appeal pursuant to Rule 1925(a)(2)(i) and (b).
Thus, Mother’s second and third issues on appeal are waived. See Dietrich
v. Dietrich, 923 A.2d 461, 463 (Pa. Super. 2007) (stating that when an
appellant filed a Rule 1925(b) statement, any issues not raised in that
statement are waived on appeal).

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Although Mother does not raise an issue with respect to Section

2511(b), in light of the requisite bifurcated analysis, we review it. This Court

has explained as follows:

While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910
(Pa. Super. 2008) (trial court’s decision to terminate parents’
parental rights was affirmed where court balanced strong
emotional bond against parents’ inability to serve needs of
child). Rather, the orphans’ court must examine the status of the
bond to determine whether its termination “would destroy an
existing, necessary and beneficial relationship.” In re Adoption
of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). As we
explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),

[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have with
the foster parent. Additionally, this Court stated that the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). And in considering the

affection a child may have for his or her natural parents, we have explained

that

concluding a child has a beneficial bond with a parent
simply because the child harbors affection for the parent is
not only dangerous, it is logically unsound. If a child’s
feelings were the dispositive factor in the bonding analysis,
the analysis would be reduced to an exercise in semantics
as it is the rare child who, after being subject to neglect
and abuse, is able to sift through the emotional wreckage

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and completely disavow a parent. . . . Nor are we of the
opinion that the biological connection between [the parent]
and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a
parent, to establish a de facto beneficial bond exists. The
psychological aspect of parenthood is more important in
terms of the development of the child and its mental and
emotional health than the coincidence of biological or
natural parenthood.

In re K.K.R.-S., 958 A.2d at 535 (internal citations and quotation marks

omitted).

Our Supreme Court has confirmed, “the mere existence of a bond or

attachment of a child to a parent will not necessarily result in the denial of a

termination petition.” In re T.S.M., 71 A.3d at 267. The Court further stated

that “[c]ommon sense dictates that courts considering termination must also

consider whether the children are in a pre-adoptive home and whether they

have a bond with their foster parents.” Id., at 268 (citation omitted). The

Court directed that, in weighing the bond considerations pursuant to Section

2511(b), “courts must keep the ticking clock of childhood ever in mind.

Children are young for a scant number of years, and we have an obligation

to see to their healthy development quickly. When courts fail . . . the result,

all too often, is catastrophically maladjusted children.” Id.

Instantly, the orphans’ court found as follows:

Undoubtedly, as recognized by the [c]ourt during the
termination hearing, there is some evidence of a bond between
Mother and [C]hild. Over the course of [C]hild’s placement,
however, that bond became secondary to the bond developed
between [C]hild and his foster parents. [C]hild has found
stability in his foster home and has developed meaningful

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relationships with the foster parents and other children in the
home.

Trial Court Opinion, 10/31/16, at 7-8.

The court based the foregoing findings on its credibility determination

in favor of Samantha Myers, the social worker from Bethany Christian

Services, who worked with Child from September 2015 to December 2015.

Specifically, the court found that

[a]ccording to Ms. Myers, [Child] consistently expressed his
desire to live with his foster family while preferring to visit with
his biological mother and father. In two separate art therapy
projects, [Child] described a closer and stronger relationship
with the foster parents than with his natural parents. He
described the relationship of the various parental figures by
identifying his foster family as his “new family” and his biological
parents as his “old family.”

Id., at 8.

Upon review, Ms. Myers’ testimony supports the court’s findings.

Further, the record reveals that Child has resided with his foster parents

since September 2014, and they are a pre-adoptive resource. See N.T.,

Hearing, 9/8/16, at 23, 81.

In addition, the orphans’ court found as follows:

[Child] is doing extremely well with his foster family and gaining
the confidence that a child develops with stability. The sole
setback in [C]hild’s growth was the sporadic visitations with
Mother[,] which resulted in the harmful stress to the child as
displayed by soiling. While in the care of his foster parents,
[Child’s] educational, medical, emotional, and dental needs have
not only been fully met[,] but he has thrived. The emotional
attachment between [Child] and his foster parents was obvious
to anyone witnessing their interaction during the various court
proceedings.

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...

Denying [Child] permanency with the foster family with whom he
has truly bonded in the hope that Mother may someday act on a
two-year history of hollow representations present the greater
risk for [Child] than worth taking. . . .

Trial Court Opinion, 10/31/16, at 8.

Upon review, the testimonial evidence overwhelmingly supports the

court’s findings. As such, we discern no abuse of discretion by the orphans’

court in concluding that terminating Mother’s parental rights serves the

developmental, physical and emotional needs and welfare of Child under

Section 2511(b). Accordingly, we affirm the order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2017

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