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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: TERMINATION OF PARENTAL : IN THE SUPERIOR COURT OF
RIGHTS OF S.D. AND W.F., AS TO : PENNSYLVANIA
THE MINOR CHILD A.W.F. :
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APPEAL OF: S.D., NATURAL MOTHER : No. 1879 WDA 2017
Appeal from the Decree entered November 2, 2017
In the Court of Common Pleas of Elk County
Orphans’ Court at No: 3 of 2016
IN RE: TERMINATION OF PARENTAL : IN THE SUPERIOR COURT OF
RIGHTS OF S.D. AND R.P., JR., AS : PENNSYLVANIA
TO THE MINOR CHILD C.J.D. :
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APPEAL OF: S.D., NATURAL MOTHER : No. 1902 WDA 2017
Appeal from the Decree entered October 26, 2017
In the Court of Common Pleas of Elk County
Orphans’ Court at No: No. 4 of 2016
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 2, 2018
S.D. (“Mother”) appeals from the decrees entered October 26, 2017,
and November 2, 2017, which terminated involuntarily her parental rights to
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* Retired Senior Judge assigned to the Superior Court.
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her minor sons, C.J.D., born in June 2006, and A.W.F., born in July 2011
(collectively, “the Children”).1 After careful review, we affirm.
The record reveals that Elk County Children and Youth Services (“CYS”)
became involved with this family in 2014, after it received reports alleging
deplorable living conditions in Mother’s home. N.T., 7/7/16, at 7. The reports
further alleged that drug use was occurring in the home “and that threats were
being made” against the Children’s older sister, J.E.D. Id. The trial court
adjudicated C.J.D. dependent by order dated March 19, 2014, but did not
remove him from the home. The court did not adjudicate A.W.F. dependent.
This situation continued for several months, until CYS obtained custody of the
Children pursuant to emergency orders dated September 4, 2014. The court
adjudicated A.W.F. dependent by order dated September 10, 2014.
On January 8, 2016, CYS filed petitions to terminate Mother’s parental
rights to the Children involuntarily. The trial court conducted a termination
hearing over the course of nearly a year, on March 31, 2016, July 7, 2016,
November 10, 2016, and February 1, 2017.2 On October 26, 2017, the trial
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1 The decrees also terminated the parental rights of R.P., Jr., who is C.J.D.’s
father, and W.F., who is A.W.F.’s father. R.P., Jr., did not appeal the
termination of his parental rights. W.F. filed an appeal at Superior Court
docket number 1880 WDA 2017. We address his appeal in a separate
memorandum.
2 The trial court appointed Thomas G.G. Coppolo, Esquire, to represent the
Children during the termination proceedings. Our review of the record
indicates that Attorney Coppolo provided adequate representation of the
Children’s legal interests during the hearing. However, we note with
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court entered a decree terminating Mother’s parental rights as to C.J.D. On
November 2, 2017, the court entered a decree terminating Mother’s parental
rights as to A.W.F.
Mother timely filed a notice of appeal as to A.W.F. on December 1, 2017,
along with a concise statement of errors complained of on appeal. That same
day, Mother filed a motion to appeal nunc pro tunc as to C.J.D. Therein,
Mother’s counsel averred that Mother contacted his office requesting an appeal
on the last day of the appeal period. However, Mother’s counsel was out of
town, and could not file the notice of appeal on time. The trial court granted
Mother’s motion on December 6, 2017, giving her until December 15, 2017,
to file her notice of appeal. She timely complied by filing a notice of appeal
and concise statement on December 13, 2017.
Mother now presents the following questions for our review:
1. Whether the Trial Court erred in terminating Mother’s parental
rights under 23 Pa[.]C.S.A. §[]2511(a)(1)?
2. Whether the Trial Court erred in terminating Mother’s parental
rights under 23 Pa[.]C.S.A. §[]2511(a)(2)?
3. Whether the Trial Court erred in terminating Mother’s parental
rights under 23 Pa[.]C.S.A. §[]2511(a)(5)?
4. Whether the Trial Court erred in terminating Mother’s parental
rights under 23 Pa[.]C.S.A. §[]2511(a)(8)?
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disapproval that Attorney Coppolo failed to file a brief advocating for the
Children’s legal interests on appeal. See In re Adoption of T.M.L.M., 184
A.3d 585, 590 (Pa. Super. 2018) (explaining that counsel’s duty to represent
a child continues on appeal).
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5. Whether the Trial Court committed an error and/or abuse of
discretion in finding that the termination of Father’s parental
rights was in the child’s best interest in accordance with 23
Pa[.]C.S.A. §[]2511(b)?
Mother’s Brief at 6 (suggested answers omitted).
We review a decree terminating parental rights involuntarily in
accordance with 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).
Section 2511 of the Adoption Act, 23 Pa.C.S.A. § 2511, governs
involuntary termination of parental rights. It 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).
In this case, the trial court terminated Mother’s parental rights pursuant
to Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the
court as to any one subsection of Section 2511(a), as well as Section 2511(b),
in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s
decision to terminate under Section 2511(a)(8) 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:
***
(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)(8) and (b).
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We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(8):
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(8), the following factors must be demonstrated: (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.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
Termination under Section 2511(a)(8) does not require consideration of a
parent’s willingness or ability to remedy the conditions that led to the removal
of his or her child. In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa. Super.
2006).
In its opinions accompanying the termination decrees, the trial court
found that the Children have remained in foster care for longer than twelve
months, and that the conditions leading to their removal from Mother’s care
continue to exist. Trial Court Opinion (C.J.D.), 10/26/17, at 10, 16, 18.3 The
court reasoned that Mother failed to comply with services in a timely manner,
failed to obtain suitable housing, and failed to maintain a healthy relationship
with the Children. Id. at 13-16. The court further concluded that terminating
Mother’s parental rights would best serve the Children’s needs and welfare.
Id. at 17. The court reasoned that there is no evidence that Mother and the
Children share a necessary and beneficial bond, and that the Children will not
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3 Because the trial court’s discussion is substantively the same for both
Children, we cite only the court’s opinion as to C.J.D.
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suffer irreparable harm. Id. at 16-17. The court concluded that the Children’s
relationship with Mother is, at best, “a primary or basic parental bond . . . that
is not secure.” Id. at 16.
Mother contends that the trial court erred by concluding that her
parental rights should be terminated. Mother’s Brief at 22-23. Mother asserts
that she participated in services, including parenting classes, and maintained
a suitable home. Id. at 21. She also asserts that terminating her parental
rights would be detrimental to the Children, because they remain without a
pre-adoptive placement. Id. at 22.
Our review of the record supports the trial court’s findings. As discussed
above, the trial court removed the Children from Mother’s care in September
2014. By the time the court terminated Mother’s parental rights in October
and November 2017, the Children had been removed from Mother’s care for
over three years, well beyond the twelve months required by Section
2511(a)(8).
In addition, the record is replete with evidence supporting the trial
court’s findings with respect to the second requirement of Section 2511(a)(8),
that the conditions which led to the removal of the Children continue to exist.
CYS presented the testimony of caseworker, Carrie Shutters. Ms. Shutters
testified that the court ordered Mother to complete several goals. N.T.,
3/31/16, at 15-17. Mother’s goals included completing a mental health
assessment and complying with all recommendations, completing a drug and
alcohol assessment and complying with all recommendations, participating in
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services to help teach cleaning and organization techniques, completing
parenting education classes and demonstrating appropriate parenting skills,
and maintaining safe and stable housing. Id.
Concerning Mother’s compliance with these goals, Ms. Shutters testified
that Mother completed mental health and drug and alcohol assessments. Id.
at 19-21. However, Mother did not comply with the recommendations of the
mental health assessment, which included adjusting her dosages of certain
medications.4 Id. at 19, 27. Mother failed to complete her cleaning and
organization techniques goal, and began but failed to complete parenting
classes. Id. at 17, 21.5 Relatedly, Ms. Shutters testified that CYS cancelled
eleven of Mother’s forty-nine possible visits with Child, because she did not
call to confirm or failed to appear. N.T., 7/7/16, at 20. Mother arrived late at
fifteen of the visits, and ended one visit early. Id.
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4 With respect to the drug and alcohol assessment, Ms. Shutters testified on
March 31, 2016, that there were not any recommendations for Mother to
complete. She stated, “[t]hey were not recommending further treatment
because she tested positive for drugs that she was prescribed.” N.T., 3/31/16,
at 32. However, Ms. Shutters testified on July 7, 2016, that she was unable
to ascertain whether the information contained in the assessment was correct,
“because [Mother] will not give me the name of her primary care physician
nor will she sign a release for me to confirm that information.” N.T., 7/7/16,
at 9. Ms. Shutters went on to state that the assessment “showed that
[Mother] was still taking medications that she was supposed to have weaned
off of.” Id. at 35. Ms. Shutters added that she still needed to confirm whether
Mother is prescribed the medications that she tests positive for. Id. at 39-40.
5 Mother testified later, on November 10, 2016, that she did complete
parenting classes. N.T., 11/10/16, at 58-59.
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Concerning Mother’s housing, Ms. Shutters testified that Mother moved
twice after Child entered foster care. Id. at 10-11. Mother moved into her
current home in approximately December 2015. Id. at 11. Ms. Shutters
reported that she made eleven attempts to visit Mother’s home between
December 2015 and March 2016 before she was able to see it. Id. at 12. She
explained,
I would call and ask if I could come. I would ask them, when they
were at visits, if I could come see the house, and I was told
repeatedly that I could not come; it was not ready yet. And then
they told me on several days that I could come see it the next
day, and then they would cancel and say that they weren’t going
to be home.
Id. at 12-13.
When Ms. Shutters finally succeeded in conducting a visit at Mother’s
home, it appeared to meet “all the standards.” Id. at 12. However, when
Ms. Shutters returned to conduct a surprise visit in May 2016, she discovered
that the home was now cluttered, dirty, and unsafe. Id. at 12, 16. She
recalled, “[t]he pathways were not clear. There was -- were piles of paint
chips lying around. . . . there were shoes in the middle. There were boxes.
There were just household items scattered around. The kitchen, there were
dirty items on the counter.” Id. at 26.
Thus, it is clear that the conditions leading to the Children’s removal
from Mother’s care remain unresolved. Each of Mother’s court-ordered goals
related in some way to addressing the concerns and circumstances resulting
in the Children’s removal. However, Mother failed to complete several of those
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goals. To the extent Mother began working toward a particular goal after CYS
filed its petition to terminate her parental rights on January 8, 2016, the trial
court was not permitted to consider it. See 23 Pa.C.S.A. § 2511(b) (“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.”).
Finally, the record supports the trial court’s findings with respect to the
third requirement of Section 2511(a)(8), that terminating Mother’s parental
rights would best serve the Children’s needs and welfare. CYS presented the
testimony of psychologist, Allen H. Ryen, Ph.D. Dr. Ryen testified that he
conducted a bonding assessment of the Children and Mother. N.T., 11/10/16,
at 6-9. Dr. Ryen opined that the Children have a “primary bond” with Mother,
but that it is a “very insecure to perhaps pathological bond.” Id. at 10. He
further opined that terminating Mother’s parental rights would not be harmful
to the Children, but that he would anticipate “closure and security emanating
from that sort of decision.” Id. at 25.
In his report, Dr. Ryen described interviewing both of the Children. He
summarized his interview with C.J.D. as follows:
[C.J.D.] also described stressful living conditions in the family
home, “dogs and dog poop everywhere.” He added that “[A.W.F.’s
father] pretty much tortured me. . . . always had hand welts
all over my back.” [C.J.D.] complained that []he had been
arbitrarily grounded for four months, locked in his room, and “we
never got enough food.” He said he had schemed to jump from
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his bedroom window to the roof on a nearby house, then climb
down a pole, “and then run away.” [C.J.D.] said his mother was
“only a little mean,” but that she would never take care of them
and would never keep her promises, e.g., being allowed to go
outside and play with his friends. [C.J.D.] added that “[J.E.D.]
was mean too. . . . trying to make us do what Mom said.” He said
his parents[’] problem was that they did “so much drugs!” He
added that when they were not doing drugs, they were either
screaming or sleeping.
[C.J.D.] said he did not like how he was treated by his parents,
stating that they never paid attention to him, and that he would
usually have to go to them if he needed anything, e.g. a hug.
[C.J.D.] said that his parents “always lie. . . . say they love me
but I don’t believe them. . . . [they] don’t treat us right.” [C.J.D.]
predicted that his parents would “try to hug on us a bunch today
to make it look like they’re good parents, but they’re not.”
[C.J.D.] concluded that he would like to “prove” that they were
not good parents, that they’re “really, really bad parents,” and
that “they shouldn’t ever get us back.” He said he was really
worried about what his parents would do and say at the bonding
assessment, but that the author should be cautious, “because
they lie so much.”
Dr. Ryen’s Report, 5/28/16, at 3-4 (emphasis in original).6
With respect to A.W.F., Dr. Ryen wrote that he was equally as critical.
A.W.F. described the poor living conditions of Mother’s previous home, and
stated that she did not take care of him. Id. A.W.F. stated that Mother is
“bad,” and that it would be “really bad” if he had to live with her again. Id.
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6 The trial court also heard from C.J.D. in person, who stated that he would
not want to live with Mother again, because “I feel like it might be the same
thing as before.” N.T., 3/31/16, at 118. C.J.D. agreed that he would want to
return to Mother’s care if she had “a nice clean house with no dogs and it was
fun to live there.” Id. at 122. He further agreed that he would want to return
to Mother’s care if A.W.F. decided to return, so that he could “know what’s
happening with” A.W.F. and ensure that he is safe. Id. at 121-22.
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Dr. Ryen described A.W.F.’s interactions with Mother during the assessment
as follows:
. . . . Eventually [A.W.F.] approached his mother, and allowed her
to hold him from behind as he played, but then ran the truck
roughly across her face in what appeared to be an aggressive
or perhaps defensive gesture, and became increasingly more
active and demanding, with mock-aggressive defiance. Neither
parent was observed to attempt any parenting interventions with
any of the children, nor to even attempt to set limits with [A.W.F.]
who was becoming increasingly agitated and out of control, for
example, repeatedly pulling and tossing his mother’s hair. . . .
Id. at 5-6 (emphasis in original).
Accordingly, neither of the Children has a positive emotional bond with
Mother. As Dr. Ryen’s testimony demonstrates, the Children’s bond with
Mother is insecure, and perhaps pathological. The Children are hostile toward
Mother, and do not want to return to her care. Combined with Mother’s failure
to remedy the conditions leading to the Children’s removal, it is clear that
preserving her parental rights would be contrary to the Children’s needs and
welfare.
While Mother is correct that the Children remained without a pre-
adoptive placement at the conclusion of the termination hearing, this does not
require reversal of the trial court’s decrees.7 A pre-adoptive placement is not
necessary for a trial court to terminate parental rights. See In re Adoption
of C.D.R., 111 A.3d 1212, 1220 (Pa. Super. 2015) (affirming the termination
of parental rights where there was no evidence indicating that the child was
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7 CYS hoped to place the Children with Mother’s sister in Texas, who had
expressed an interest in adopting them. N.T., 11/10/16, at 30.
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bonded with his foster family, or that the foster family was pre-adoptive).
Moreover, termination of parental rights may be critical to helping children
with unhealthy bonds to their parents find pre-adoptive placements. T.S.M.,
71 A.3d at 268-269 (“Indeed, in some cases, a child’s bond with a parent,
who has proven incapable of caring for the child, may impede the child’s ability
to attach to a pre-adoptive family who can provide the needed care and
stability.”). As a result, we conclude that CYS met its burden of proof with
respect to all three requirements of Section 2511(a)(8), and that the court did
not abuse its discretion.
We next consider whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(b). We have
set forth the requisite analysis as follows:
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. 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.
[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
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parent-child bond can be severed without detrimental
effects on the child.
C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33 A.3d 95, 103 (Pa. Super.
2011) (quotation marks and citations omitted).8
As we stated above, the trial court concluded that terminating Mother’s
parental rights would best serve the Children’s needs and welfare. Trial Court
Opinion (C.J.D.), 10/26/17, at 17. The court reasoned that there is no
evidence that Mother and the Children share a necessary and beneficial bond,
and that the Children will not suffer irreparable harm. Id. at 16-17.
Mother repeats her previous contention that terminating her parental
rights would be detrimental to the Children. Mother’s Brief at 24. Mother
insists that she and the Children were affectionate during visits, that she
attended the Children’s various school functions, and that her parenting skills
were improving. Id. at 24-25.
For the reasons already discussed, the record supports the trial court’s
findings with respect to Section 2511(b). The Children do not have a
necessary and beneficial bond with Mother. The Children’s bond with Mother
is insecure, and perhaps pathological. It was within the court’s discretion to
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8Section 2511(a)(8) and (b) both require trial courts to assess the needs and
welfare of the child. However, the needs and welfare analysis required by
Section 2511(a)(8) is distinct from the needs and welfare analysis required by
Section 2511(b), and must be addressed separately. See In re C.L.G., 956
A.2d 999, 1009 (Pa. Super. 2008) (en banc) (“[W]hile both Section
2511(a)(8) and Section 2511(b) direct us to evaluate the ‘needs and welfare
of the child,’ . . . they are distinct in that we must address Section 2511(a)
before reaching Section 2511(b).”).
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conclude that the Children’s needs and welfare would best be served by
severing this bond, and by allowing the Children to establish new bonds with
potential adoptive resources.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by terminating Mother’s parental rights to the Children
involuntarily. Therefore, we affirm the court’s October 26, 2017, and
November 2, 2017 decrees.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2018
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