J-S45001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: H.D.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: C.G., MOTHER : No. 938 EDA 2017
Appeal from the Order Dated February 2, 2017
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2016-A0182
IN RE: ADOPTION OF: A.H.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: C.G., MOTHER : No. 939 EDA 2017
Appeal from the Order Dated February 2, 2017
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2016-A0183
IN RE: ADOPTION OF: K.N.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: C.G., MOTHER : No. 940 EDA 2017
Appeal from the Order Dated February 2, 2017
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2016-A0184
IN RE: ADOPTION OF: O.R.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: C.G., MOTHER : No. 941 EDA 2017
J-S45001-17
Appeal from the Order Dated February 2, 2017
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2016-A0185
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 24, 2017
Appellant, C.G. (“Mother”), appeals from the orders entered in the
Montgomery County Court of Common Pleas, Orphans’ Court, which changed
the family goal to adoption and granted the petitions of the Office of Children
and Youth (“OCY”) for involuntary termination of Mother’s parental rights to
her minor children, K.N.L., O.R.L., A.H.L., and H.D.L. (“Children”). 1 We
affirm.
The relevant facts and procedural history of this case are as follows.
Mother and Father are the parents of K.N.L. (born September 2004), O.R.L.
(born April 2008), A.H.L. (born January 2010), and H.D.L. (born October
2013). The family has been involved with OCY since 2011, and OCY
removed Children from parents’ care on several occasions prior to October
30, 2015. On October 30, 2015, Children were removed from parents’ care
due to Mother’s arrest on an outstanding warrant, the uninhabitable
conditions of the home, and the discovery of a woman, hiding in one of
1
The court also terminated the parental rights of J.L. (“Father”), who is not a
party to this appeal.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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Children’s bedrooms, overdosing on illegal drugs. OCY obtained emergency
legal and physical custody of Children, and on November 10, 2015, the court
adjudicated Children dependent. Children were placed together in a pre-
adoptive foster home.
Parents continually failed to complete FSP goals, which included
complying with probation, obtaining drug and alcohol treatment, maintaining
sobriety, and finding suitable housing. As a result, OCY filed petitions for
involuntary termination of parental rights on or about November 14, 2016.
The court held a termination hearing over two days on February 1 and 2,
2017. At the conclusion of the hearing, the court granted the petitions for
involuntary termination of parents’ parental rights to Children. On March 1,
2017, Mother timely filed notices of appeal, along with concise statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). This
Court consolidated the appeals sua sponte on April 5, 2017.
Mother raises six issues for our review:
DID THE TRIAL COURT ERR IN FINDING THAT THE
COMMONWEALTH MET ITS BURDEN BY CLEAR AND
CONVINCING EVIDENCE THAT [MOTHER] VIOLATED 23
PA.C.S. § 2511(A)(2) AND 23 PA.C.S. § 2511(A)(8)?
DID THE TRIAL COURT ERR WHEN IT FOUND THAT, AS IT
PERTAINS TO [MOTHER], THE CONDITIONS WHICH LED
TO THE REMOVAL OR THE PLACEMENT OF [CHILDREN]
CONTINUE TO EXIST PURSUANT TO 23 PA.C.S. §
2511(A)(8)?
DID THE TRIAL COURT ERR IN FINDING THAT THE LACK
OF A PARENTAL BOND WITH MOTHER IS SUPPORTED, AND
NOT CONTRADICTED, BY THE EVIDENCE?
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DID THE TRIAL COURT [ERR] APPLYING THE FRYE
STANDARD AND FAILED TO CONDUCT A PROCEDURALLY
CORRECT FRYE HEARING.
DID THE TRIAL [COURT ERR] WHEN IT FOUND THAT THE
DEVELOPMENTAL, PHYSICAL, EMOTIONAL NEEDS AND
WELFARE OF THE MINOR [CHILDREN] WERE BEST SERVED
BY SEVERING THE PARENTAL BOND WITH [MOTHER?]
DID THE TRIAL COURT ERR WHEN IT FOUND THAT THE
CONDITIONS AND CAUSES WHICH LED TO THE REMOVAL
OF THE MINOR [CHILDREN] CONTINUE TO EXIST AND
THAT [MOTHER] CAN OR WILL NOT REMEDY THE
CONDITIONS WITHIN A REASONABLE PERIOD OF TIME,
PURSUANT TO 23 PA.C.S. § 2511(A)(2).
(Mother’s Brief at 4-5).2
Appellate review of termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent
evidence, and whether the trial court gave adequate
consideration to the effect of such a decree on the welfare
of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must
employ a broad, comprehensive review of the record
in order to determine whether the trial court’s
2
Mother included the Frye hearing issue in her statement of questions
involved, but she did not pursue any argument on this claim. Therefore, we
deem the issue waived. See Butler v. Illes, 747 A.2d 943 (Pa.Super.
2000) (holding appellant waived claim where appellant failed to set forth
adequate argument concerning claim on appeal).
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decision is supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the
finder of fact, is the sole determiner of the credibility
of witnesses and all conflicts in testimony are to be
resolved by the finder of fact. The burden of proof is
on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted).
The standard of clear and convincing evidence means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
may uphold a termination decision if any proper basis
exists for the result reached. In re C.S., 761 A.2d 1197,
1201 (Pa.Super. 2000) (en banc). If the court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result. In re R.L.T.M., 860 A.2d 190, 191-92
(Pa.Super. 2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d
1165 (2008)).
OCY filed petitions for the involuntary termination of Mother’s parental
rights to Children on the following grounds:
§ 2511. Grounds for involuntary termination
(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:
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* * *
(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.
* * *
(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
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)(2), (8), and (b). “Parental rights may be
involuntarily terminated where any one subsection of Section 2511(a) is
satisfied, along with consideration of the subsection 2511(b) provisions.” In
re Z.P., supra at 1117.
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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 …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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; to the contrary, those grounds may
include acts of refusal as well as incapacity to perform parental duties. In
re A.L.D., 797 A.2d 326 (Pa.Super. 2002). “Parents are required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. The fundamental test in termination of
parental rights under Section 2511(a)(2) was long ago stated in the case of
In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania
Supreme Court announced that under what is now Section 2511(a)(2), “the
petitioner for involuntary termination must prove (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,
neglect or refusal caused the child to be without essential parental care,
control or subsistence; and (3) that the causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied.” In Interest of Lilley,
719 A.2d 327, 330 (Pa.Super. 1998). Incarceration is also relevant in
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termination decisions under Section 2511(a)(2) and can be a determinative
factor “in a court’s conclusion that grounds for termination exist under
[Section] 2511(a)(2) where the repeated and continued incapacity of a
parent due to incarceration has caused the child to be without essential
parental care, control or subsistence and that the causes of the incapacity
cannot or will not be remedied.” In re Adoption of S.P., 616 Pa. 309, 329,
47 A.3d 817, 828 (2012). “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 [Section] 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 332, 47 A.3d
at 830-31.
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (1) [t]he child has been removed from
parental care for [twelve] 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.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76
(Pa.Super. 2003). “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
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court.” In re A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Termination
under Section 2511(a)(8) does not require the court to evaluate a parent’s
current willingness or ability to remedy the conditions that initially caused
placement or the availability or efficacy of Agency services. In re Adoption
of T.B.B., 835 A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P.,
supra.
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond,
paying close attention to the effect on the child of permanently severing the
bond.” Id. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
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within a reasonable time following intervention by the state, may properly be
considered unfit and have …her rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). This Court has said:
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 [C]ourt 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 [herself] 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…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., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of …her child is converted,
upon the failure to fulfill…her parental duties, to the child’s right to have
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proper parenting and fulfillment of [the child’s] potential in a permanent,
healthy, safe environment.” Id. at 856.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Cheryl L.
Austin, we conclude Mother’s issues merit no relief. The Orphans’ Court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Orphans’ Court Opinion, dated March 16, 2017, relying on
and attaching its reasoning set forth on record at termination hearing, N.T.
Hearing, 2/2/17, at 129-50) (finding: under Section 2511(a)(8), Children
have been removed from Mother’s care since 10/30/15, which is more than
12 months; Mother suffers from depression and anxiety; testimony from
OCY witnesses showed Mother failed to complete treatment programs or
cooperate with OCY staff and services; Mother has problems with drug use,
tested positive for drugs on some occasions, and refused drug testing on
other occasions; Mother’s drug use, as well as her incarceration, made it
impossible for her to provide proper parental care and support necessary for
Children’s physical and mental wellbeing; Mother’s drug use was condition
that led to Children’s placement, and Mother has not demonstrated she can
remedy that condition within reasonable period of time; it is unfair for
Children to be forced to wait for Mother to become capable of parenting
them; under Section 2511(a)(2), OCY showed evidence of Mother’s neglect
of Children; Mother justified her actions due to “addict thinking”; Mother is
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incapable of performing basic parental duties; under Section 2511(b), there
is minimal parental bond between Mother and Children; out of 35 visits
offered with Children, Mother attended only 15; youngest child refers to
foster mother as his mother; Children need more than Mother’s love and
affection; Mother has not been able to provide for Children’s needs;
Children’s best interests will be met by termination of Mother’s parental
rights; Children are bonded to foster parents). Accordingly, we affirm on the
basis of the Orphans’ Court opinion.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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Circulated 07/14/2017 02:24 PM