J-S55013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.J.L.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: T.C.B., MOTHER :
:
:
:
: No. 700 MDA 2017
Appeal from the Decree Entered March 23, 2017
In the Court of Common Pleas of Lancaster County
Orphans’ Court at No(s): 2342-2016
BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 25, 2017
Appellant, T.C.B., (“Mother”), appeals from the decree involuntarily
terminating her parental rights to L.J.L.C. (“Child”) pursuant to the Adoption
Act, 23 Pa.C.S. § 2511(a) and (b). We affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Mother and A.L.C. (“Father”) are the parents of Child who was born in
August 2015. They were never married. Child was born suffering from
opioid withdrawal, and a referral was made to the Lancaster County Children
and Youth Social Service Agency (“Agency”) with information that indicated
Mother was using drugs, had unstable mental health, and that there was
domestic violence occurring between Mother and Father. More specifically,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S55013-17
Mother tested positive for opioids a month before Child’s birth and Mother
and Father engaged in a number of arguments while at the hospital for
Child’s birth.
The Agency opened an assessment of the family and made repeated
attempts to meet with the parents.1 On one occasion, Mother left the
hospital before a visit and did not return for almost an hour. When the
parents later learned that Child would be transferred to a neonatal intensive
care unit (“NICU”), Mother reacted violently. She threw items in her hospital
room and slammed her hospital bed against the wall. The Agency made
three unsuccessful attempts to speak with Mother by telephone.
Mother was discharged on August 30, 2015, but Child remained in the
NICU. Mother’s contact with Child from the time of her discharge until
Child’s discharge was sporadic, including five days in September when she
had no contact with him. In addition, Mother’s contacts with Child were
monitored due to the ongoing domestic violence concerns, as well as the
quality of care Mother provided Child. More specifically, on two occasions
Mother declined to feed Child, and woke him although instructed not to do
so.
____________________________________________
1
The Agency first became involved with Mother in 2008 after similar
allegations were made involving an older son she had had with a different
father. After the child’s safety was assured the reports were closed. That
child is currently living with his father.
-2-
J-S55013-17
Because of these ongoing concerns, Child was discharged, on October
24, 2015, to the custody of the Agency. On November 9, 2015, Child was
adjudicated dependent, and placed in a resource home where he has
remained. The approved child permanency plan included a primary goal of
reunification, and a concurrent goal of adoption. Both parents were
provided with goals under the plan. Mother’s plan included goals regarding
her mental health, drug abuse, domestic violence, parenting, financial
stability, and safe housing.
Thereafter, permanency review hearings were held regarding Mother’s
progress on her goals. On November 7, 2016, the Agency filed petitions to
terminate (“TPR Petition”) both Mother’s and Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). 2 On December
5, 2016 the Orphans’ Court held a permanency review hearing. At that
time, the court heard testimony from the Agency’s caseworker assigned to
the family regarding Mother’s progress toward her goals, and from the
court-appointed special advocate (“CASA”) for Child. At the end of the
hearing, the court concluded that Mother made minimal progress on her
plan, and that legal and physical custody of Child would remain with the
Agency.
____________________________________________
2
Father voluntarily relinquished his parental rights on March 23, 2017.
-3-
J-S55013-17
The Orphans’ Court held an evidentiary hearing regarding the TPR
petition on March 6, 2017. The caseworker assigned to the family, and a
caseworker who observed Mother’s visitations with Child, testified for the
Agency. The court also heard an update from Child’s CASA in regard to
Child’s current status within the resource home. Although Mother did not
present any testimony, her counsel did inform the court that the parties
reached a stipulation regarding one of several unsuccessful discharge reports
from mental health treatment which had been sent in error. See N.T.,
3/6/17, at 33-34. Following the conclusion of this testimony the Orphans’
Court took the matter under advisement.
By opinion and decree entered on March 23, 2017, the Orphans’ Court
terminated Mother’s parental rights pursuant to 23 Pa.C.S. §2511(a)(1),(2),
(5), (8), and (b). This timely appeal by Mother follows.
ISSUES ON APPEAL
Mother raises the following issues on appeal:
I. Did the [Orphans’ Court] err and abuse its discretion in
terminating the parental rights of Mother by failing to
give proper weight to Mother’s efforts to complete the
reunification plan?
II. Did the [Orphans’ Court] err and abuse its discretion in
terminating the parental rights of Mother by failing to
give proper weight to the relationship and bond
between Mother and [Child]?
Mother’s Brief at 7.
-4-
J-S55013-17
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.” In re T.S.M.,
71 A.3d 251, 267 (Pa. 2013) (citation omitted).
We give great deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings. Id. The Orphans’
Court is free to believe all, part, or none of the evidence presented and is
likewise free to make all credibility determinations and resolve conflicts in
the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). In
addition, in order to affirm the termination of parental rights, this Court need
only agree with any one subsection under Section 2511(a). See In re
B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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
-5-
J-S55013-17
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).
Termination Pursuant to 2511(a)(1)
Section 2511(a)(1) provides that the trial court may terminate
parental rights if the Petitioner establishes that for six months, the parent
demonstrated a settled intent to relinquish a parental claim or a refusal or
failure to perform parental duties:
a) 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 has evidenced a settled purpose of
relinquishing parental claim to a child or has
refused or failed to perform parental duties.
23 Pa.C.S. § 2511(a)(1). This Court has interpreted this provision as
requiring the Petitioner to demonstrate a settled intent to relinquish a
parental claim to a child or a refusal or failure to parent:
To satisfy the requirements of section 2511(a)(1), the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to
perform parental duties.
-6-
J-S55013-17
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted).
This Court has defined “parental duties” in general as the obligation to
affirmatively and consistently provide safety, security and stability for the
child:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this Court has held that the parental
obligation is a positive duty which requires affirmative
performance. This affirmative duty … requires continuing
interest in the child and a genuine effort to maintain
communication and association with the child. Because a
child needs more than a benefactor, parental duty requires
that a parent exert himself to take and maintain a place of
importance in the child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations
omitted).
Moreover, a parent must exercise reasonable firmness in resisting
obstacles placed in the path of maintaining the parent child relationship:
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available
resources to preserve the parental relationship, and must
exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship.
Id.
And most importantly, “parental rights are not preserved by waiting
for a more suitable or convenient time to perform one’s parental
-7-
J-S55013-17
responsibilities while others provide the child with her physical and
emotional needs.” Id.
In the instant case, the Orphans’ Court properly concluded that the
Agency met the requirements of Section 2511(a)(1). The Orphan’s Court
found that, in the relevant period prior to the Agency filing the TPR petition,
indeed for the majority of Child’s young life, Mother’s progress towards her
goals has been minimal. The court explained:
At the time of this writing, [Child] has been in
placement for the last 18 months of his entire 20 months
of life, having spent the first two months in the NICU. This
Court is concerned that forcing [Child] to remain in the
uncertainty of placement, after almost two years already in
placement, while continuing to wait for Mother to change,
will be harmful to him. The requirements of 23 Pa.C.S.
§2511(a) . . . have been met.
***
Mother’s efforts have been minimal. In 18 months,
Mother has not been successfully discharged from mental
health, drug and alcohol, or domestic violence treatment,
she had not begun or completed parenting training,[3] and
has never secured stable income or suitable housing.
Arguably, the only goal that Mother has made any
progress on is her irregular attendance at weekly
visitation.
***
Here, Mother’s continued inability to care for [Child] or
to complete permanency plan goals for reunification
supports the termination decision of the Orphans’ Court.
____________________________________________
3
The record indicates that due to Mother’s non-compliance, the drug and
alcohol treatment team never cleared her to begin parenting classes. See
N.T., 12/5/16, at 11-12.
-8-
J-S55013-17
This Court cannot gamble with the safety and welfare of
[Child]. Mother has had ample opportunities to
demonstrate her ability to be an acceptable parent but has
failed to do so.
Orphans’ Court Opinion, 3/23/17, at 11-13.
Mother summarizes her argument with regard to the Orphans’ Court
conclusion as follows:
The [Orphans’ Court] erred and abused its discretion by
failing to give appropriate weight to Mother’s efforts to
complete the plan for reunification, including evidence that
she was in counseling for mental health and domestic
violence; was addressing her drug addiction through
methadone treatment; she had secured employment; the
visits between Mother and [Child] had improved; and there
was evidence of a bond and positive relationship between
Mother and [Child].
Mother’s Brief at 11. According to Mother, “she had made progress on the
Plan and could have completed it if the [Orphans’ Court] had given her more
time. Id. at 9.
Our review of the record refutes Mother’s claims. We find that her
arguments focus on the credibility of the witnesses, a determination that we
cannot disturb on appeal. In re M.G., supra. Although Mother
characterizes portions of the testimony of the Agency’s witnesses as
demonstrating more than minimal progress, and again notes the stipulation
entered with regard to an error in one report, the weight accorded the
totality of the testimony presented was in the exclusive province of the
Orphans’ Court as fact finder. Id. In addition, although there was evidence
that most recently Mother’s visits with Child have improved and she finally
-9-
J-S55013-17
completed a psychiatric evaluation, “the court shall not consider any efforts
by the parent to remedy the conditions described [in subsection (a)(1)]
which are first initiated subsequent to the giving of the notice of the filing of
the [TPR] petition.” 23 Pa.C.S. § 2511(b).
Accordingly, the court did not abuse its discretion in terminating
Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), and we need
not consider the other subsections under Section 2511(a). B.L.W., supra.
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, 1287 (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.” In addition,
the orphans’ court must also discern the nature and status of the parent-
- 10 -
J-S55013-17
child bond, with utmost attention to the effect on the child of permanently
severing that bond. Id.
In cases where there is no evidence of a bond between a parent and a
child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d
753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case. Id. at 763.
In this case, the Orphan’s Court found that Mother does not share a
close bond with Child. Rather, a beneficial bond exists between Child and
his resource parents, who have provided for Child’s daily needs for the
majority of his life. The court explained:
The Court does not see a bond between Mother and
[Child] that is sufficient to prevent the termination of
Mother’s parental rights. In truth, [Child] is bonded with
his resource parents and they are the only parents and
family that he has known since being discharged from the
NICU when he was six weeks old. The CASA’s November
20, 2016, Report for instance, noted that [Child] could not
be comforted by Mother[] after a minor injury, and that
only his resource mother was able to quiet him. [Child]
deserves the certainty of remaining with parents he loves
and is bonded to, and does not deserve a Mother who is
unwilling to care for him in a healthy and appropriate
manner[.]
Orphan’s Court Opinion, 3/23/17, at 13 (citation omitted).
Once again, the credibility of the witness’s testimony, and the weight
to be given it, are matters exclusively within the province of the Orphans’
Court as fact finder. In re M.G., supra. Thus, Mother’s claim fails.
- 11 -
J-S55013-17
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). Accordingly, we affirm.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2017
- 12 -