In Re: W.S., Jr., Appeal of: J.R.

J-S22024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: W.S., JR., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.R., MOTHER :
:
:
:
:
: No. 2062 MDA 2019

Appeal from the Decree Entered December 2, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2019-00750

IN RE: N.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.R., MOTHER :
:
:
:
:
: No. 2063 MDA 2019

Appeal from the Decree Entered December 2, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2019-00751

IN RE: T.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.R., MOTHER :
:
:
:
:
: No. 2065 MDA 2019

Appeal from the Decree Entered December 2, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2019-00752
J-S22024-20

IN RE: F.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.R., MOTHER :
:
:
:
:
: No. 2066 MDA 2019

Appeal from the Decree Entered December 2, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2019-00753

BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED: JUNE 22, 2020

J.R. (Mother) appeals from the decrees involuntarily terminating her

parental rights to her four children, W.S., Jr., a male (born in November

2008), N.S., a female (born in November 2011), T.S., a male (born in January

2014), and F.S., a female (born in April 2015) (collectively, Children). Upon

careful review, we affirm.

Lancaster County Children and Youth Service Agency (Agency) first

became involved with this family in 2013, due to domestic violence in the

home and Mother’s struggle with depression. Orphans’ Court Opinion,

11/21/19, at 2. The Agency created a safety plan and maintained an open

file with this family until January of 2016. Id.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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On June 7, 2016, Mother voluntarily placed the Children in the Agency’s

custody because “she was severely depressed, had been abusing Percocet,

and felt overwhelmed in caring for the [C]hildren.” Id. On June 8, 2016, the

orphans’ court formally placed the Children in the temporary custody of the

Agency.1 The Agency placed W.S., Jr., and N.S. together in one foster home,

and T.S. and F.S. together in a different foster home. Id. at 2. At the time

of the subject proceeding, the Children remained in their respective foster

homes, which “are potentially permanent placements for the Children.” Id.

The orphans’ court adjudicated the Children dependent on June 20,

2016. Id. The court set the Children’s permanency goal as reunification with

the concurrent goal of adoption. Mother was required to satisfy the following

family service plan objectives: improve mental health functioning; remain free

from the abuse of drugs and alcohol, crime, and domestic violence; improve

parenting skills; and maintain a safe home for the Children. Id. at 3.

The orphans’ court held permanency review hearings at regular

intervals. From June through November 2016, Mother struggled with drug

addiction, for which she received inpatient treatment in July and November

____________________________________________

1 At the time of the Children's placement, W.A.S., Sr., (Father) was
incarcerated at State Correctional Institution - Retreat for committing
aggravated assault against Mother. Orphans’ Court Opinion, 11/21/19, at 2.
Father remained in prison until April 1, 2018. Id. at 5. As best we can discern,
Father was re-incarcerated for a parole violation from August 7, 2019, to
August 22, 2019. N.T., 9/23/19, at 17.

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2016. Id. at 3-4. On November 17, 2016, Mother was unsuccessfully

discharged from an inpatient drug rehabilitation program at White Deer Run.

Id. at 4. By August 2017, Mother had entered into a romantic relationship

with a man who had a history of being abusive. Id. at 5.

On March 5, 2018, the court found that Mother was in substantial

compliance with her permanency plan. As a result, the court ordered that the

Agency “could present a written petition requesting the Children to be released

from its physical custody and returned to Mother.”2 Id. Following this

hearing, the Children continued visiting Mother in her home on a weekly basis.

At the next permanency hearing in August 2018, the court ordered that

Mother’s visitation with the Children be supervised in her home once per week

without her paramour present. Id. at 6. In addition, the court ordered Mother

and her paramour to participate in couple’s counseling. Id. However, at the

permanency hearing on February 4, 2019, the court found that Mother had

been the victim of domestic violence by both her paramour and Father during

the most recent six-month review period. Id. at 6-7. Specifically, the court

____________________________________________

2There is no evidence in the certified record before this Court whether the
Agency filed the petition requested by the orphans’ court.

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found, “At least four incidences of domestic violence had occurred between

Mother and her paramour.”3 Id.

On April 1, 2019, the Agency filed a petition for the involuntary

termination Mother’s and Father’s parental rights to the Children pursuant to

23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). A hearing occurred on

September 23, 2019, and October 28, 2019, during which Mother and Father

were present and represented by separate counsel. Elizabeth A. Stineman,

Esquire, the guardian ad litem (GAL), represented the best interests of the

Children. Pamela J. Breneman, Esquire, represented the legal interests of the

older children, W.S., Jr., and N.S.4, 5

____________________________________________

3The court found that criminal charges were filed against Mother’s paramour
due to his physical abuse of Mother, and Mother filed a protection from abuse
action against him. Orphans’ Court Opinion, 11/21/19, at 6.

4 Pursuant to 23 Pa.C.S.A. § 2313(a), a child who is the subject of a contested
involuntary termination proceeding has a statutory right to counsel who
discerns and advocates for his or her legal interests, which our Supreme Court
has defined as the child’s preferred outcome. See In re T.S., 192 A.3d 1080
(Pa. 2018) (citing In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)). The
T.S. Court reaffirmed, “where a child’s legal and best interests do not diverge
in a termination proceeding, an attorney-GAL representing the child’s best
interests can also fulfill the role of the attorney appointed per Section 2313(a)
to represent the child’s legal interests.” T.S., 192 A.3d at 1088 (citing L.B.M.,
161 A.3d at 184, 188-189, 191). In this case, the record does not indicate
that a conflict existed between the legal and best interests of the younger
children, T.S. and F.S.

5Both the GAL and legal counsel for W.S., Jr., and N.S. filed appellee briefs in
support of the decrees involuntarily terminating Mother’s parental rights.

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The Agency presented the testimony of its caseworker, Kelsey Curcio.6

The court admitted into evidence a bonding evaluation performed by Karen M.

Jaskot, ACSW, LCSW, CAADC, dated August 6 and 13, 2019, with respect to

the Children’s bond, if any, with Mother, Father, and their respective foster

parents. See N.T., 10/28/19, at 6. The parties stipulated that, if Ms. Jaskot

testified, she would opine consistent with her report. Id. at 5-6. Mother

neither testified nor presented any evidence.

By decrees dated November 21, 2019, and entered on December 2,

2019, the orphans’ court involuntarily terminated Mother’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). On December

19, 2019, Mother timely filed notices of appeal and concise statements of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b),

which this Court consolidated sua sponte.7 The orphans’ court filed its Rule

1925(a) opinion on January 17, 2019.

On appeal, Mother presents the following issue:

Whether the [orphans’] [c]ourt abused its discretion when it failed
to adequately consider Mother’s domestic abuse history, ongoing
struggles with substance abuse issues, and past successes
working with the Agency, as factors which would have allowed
Mother additional time to work on her family service plan and,
thus[,] remedy the condition for placement[?]
____________________________________________

6 In addition, the Agency presented the testimony of Heather Lutz, Father’s
probation and parole officer.

7Father also timely appealed from the decrees involuntarily terminating his
parental rights to the Children. We address Father’s appeal by separate
memorandum.

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Mother’s brief at 1 (unpaginated).

Our standard of review is as follows:

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.

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

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We need only agree with the trial 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 decrees pursuant to Section

2511(a)(2) and (b),8 which provide 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:

* * *

(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.

* * *

(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) and (b).

____________________________________________

8Based on this disposition, we need not consider the involuntary termination
decrees pursuant to Section 2511(a)(1), (5), and (8).

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This Court has explained that the moving party must produce clear and

convincing evidence with respect to the following elements to terminate

parental rights pursuant to Section 2511(a)(2): (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or

refusal 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. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.

2003).

Pursuant to Section 2511(a)(2), parents are required to make diligent

efforts towards the reasonably prompt assumption of full parental

responsibilities. In re A.L.D. 797 A.2d 326, 340 (Pa. Super. 2002). A

parent’s vow to cooperate, after a long period of uncooperativeness regarding

the necessity or availability of services, may properly be rejected as untimely

or disingenuous. Id. Further, 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. Id. at

337.

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,

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1287 (Pa. Super. 2005) (citation omitted). Further, 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). However, “[i]n cases where there is no evidence of any bond

between the parent and child, it is reasonable to infer that no bond exists.

The extent of any bond analysis, therefore, necessarily depends on the

circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-763

(Pa. Super. 2008) (citation omitted).

On appeal, Mother argues that the court “should have allowed [her]

additional time to complete her [family service] plan given the fact that her

temporary relapses were caused by acts of domestic abuse perpetrated by her

new paramour. Moreover, by March of 2018, Mother had demonstrated to the

court that she was capable of success and compliance with her plan, and, in

essence, had completed her plan.” Mother’s brief at 7 (unpaginated).

We disagree and reject Mother’s argument to the extent that she blames

her incapacity to parent the Children on the domestic abuse inflicted by her

paramour. Mother’s argument is disingenuous because her relationship with

her paramour commenced, as best we can discern, in 2017 when the Children

were in placement. Mother knew the permanency objectives she needed to

accomplish in order to be reunified with the Children including, but not limited

to, being free from domestic violence situations.

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Further, we discern no abuse of discretion in the explanation offered by

the orphans’ court:

At present, Mother is only a few months sober from heroin use,
admitted to being [physically] gripped by Father over the last
review period, is not employed, is newly pregnant with the man
who has repeatedly abused her, and is homeless. While Mother
completed some goals on her service plan such as attending
counseling and domestic violence treatment, Mother’s inability to
remain at a drug and alcohol rehab center longer than a few days,
and her inability to maintain boundaries around the men who have
beaten her shows that the very same concerns that necessitated
original placement still remain. While the [c]ourt is sensitive to
Mother’s struggle against domestic violence, her lack of
willingness to follow through with treatment and continued use of
drugs has led to over three years of absence from [the] Children—
creating an untenable situation for them. . . .

* * *

Over thirty-nine months, the [c]ourt has observed Mother’s
pattern of engaging in harmful relationships, depending on drugs,
seeking treatment, and then remaining sober for a time until the
vicious cycle starts over again. The [c]ourt firmly believes that
the thirty-nine month sample of Mother’s life that it has observed
shows an incapacity to care for [the C]hildren that has not been
remedied, nor can it be remedied in the immediate future such as
to assure this court that [the] Children will be properly cared for.
Therefore, the court is satisfied that the Agency proved by clear
and convincing evidence that termination of Mother’s parental
rights is warranted pursuant to Section 2511(a)(2).

Orphans’ Court Opinion, 1/17/19, at 10, 12. The testimonial evidence

supports the court’s findings.

The Agency caseworker, Kelsey Curcio, testified that Mother, although

not recently drug tested, told her the week before the subject proceeding that

she has “been a few weeks clean from using” heroin. N.T., 9/23/19, at 13.

In addition, she testified that Mother was cited for public drunkenness on May

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14, 2019. Id. Ms. Curcio stated, to the best of her knowledge, “there is a

bench warrant out right now for [Mother] for failure to pay [her penalty from

the citation].” Id.

Ms. Curcio testified that Mother “is not currently in any mental health”

or drug and alcohol treatment. Id. at 12. She explained:

We wanted to look into doing a dual diagnosis [program] because
[Mother] wasn’t successful with completing any inpatient services.
I’ve encouraged her several times to get back [into] inpatient
[treatment] . . . where she can also focus on her mental health,
as well. I met with her a handful of times in the past few months;
however, right now the only thing that she is . . . involved with
[is] the Rase Project,[9] and I believe that worker is trying to get
her involved in dual diagnosis treatment.

Id. Further, she testified that Mother “reported to me before court today that

she was going to be getting back on the Vivitrol shot[,][10] and that she does

stay in contact with the Rase Project worker. Other than that, she’s not in

any treatment.” Id.

With respect to Mother’s domestic violence objective, Ms. Curcio

testified, “there has been ongoing physical abuse . . . or domestic violence

between her and [Father]. [Mother] reported that he has gripped her up

____________________________________________

9 As best we can discern, the Rase Project is a nonprofit organization that
provides support for those in drug recovery.

10The certified record does not describe the purpose or benefit of Vivitrol
shots.

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several times and strangled her on one occasion.” Id. at 13-14. Ms. Curcio

continued on direct examination:

Q. Have you had discussions with [Mother] then about going to a
shelter or taking other steps to ensure her safety?

A. Yes, . . . we had it set up for her to enter a rehab, she thought
she would be able to stay safe from him if she was, you know, out
of Lancaster County at White Deer Run; however, she went there
for a few days and then she left.

Id. at 14. On cross-examination by Mother’s counsel, Ms. Curcio testified that

White Deer Run offered Mother a dual diagnosis treatment program, and

Mother was there from August 4, 2019 until August 9, 2019. Id. at 22. In

addition, Mother returned to White Deer Run on August 29, 2019, but Ms.

Curcio did not testify how long Mother remained then. By the time of the

subject proceeding, Mother was not in any treatment program.

With respect to Mother’s housing objective, Ms. Curcio testified that

Mother called her on September 30, 2019 and informed her that she was

pregnant, but she did not know if the child was that of Father or her paramour.

N.T., 10/28/19, at 8. Further, Mother told her “that she was living on the

streets and wanted me to find a shelter for her.” Id. Ms. Curcio stated, “We

were able to get a hold of Vantage House[,][11] and they were able to expedite

____________________________________________

11 Ms. Curcio testified that Vantage House was a shelter program that provided
treatment services for mental health, drug and alcohol addiction, and domestic
violence. N.T., 10/28/19, at 9.

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the process for her. And she ended up going there on October 10[, 2019.]”

Id. at 8-9. She continued:

Then on October 15th I received a call from Vantage [H]ouse, and
they had informed me that [Mother] had left the program. I’ve
since been able to talk to [Mother]. And she had told me that it
was just too much for her[,] and she didn’t want to talk about any
of her trauma[,] and she didn’t really trust any of the, I guess,
therapists],] and she just didn’t feel comfortable there[,] so she
wanted to leave.

Other than that[,] she’s not in any . . . services at this point. And
she’s residing with her sister. . . .

Id. at 9.

Finally, Ms. Curcio testified that since June 28, 2019, Mother missed

seven supervised visits with the Children, and she attended five. N.T.,

9/23/19, at 15-16. She stated on direct examination:

Q. And have you talked again with [Mother] about why she’s been
missing visitation?

A. Yes, because of her ongoing drug use was some of the excuses
for canceling visitation, her being homeless and not knowing or
having any ride to visits. Also with the most recent incident
between . . . [Mother] and [Father] and then also the incident
between [Mother] and [her paramour].

Id. at 16.

Based on the foregoing, we discern no abuse of discretion by the

orphans’ court in concluding that Mother’s conduct warranted the termination

of her parental rights pursuant to Section 2511(a)(2). Mother’s repeated and

continued incapacity or refusal to satisfy her family service plan objectives has

caused the Children to be without essential parental care, control, or

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subsistence necessary for their physical and mental well-being. Further, the

causes of Mother’s incapacity or refusal cannot or will not be remedied. See

In Re Adoption of C.L.G., 956 A.2d 999, 1007-08 (Pa. Super. 2008) (en

banc) (stating, “a child's life ‘simply cannot be put on hold in the hope that [a

parent] will summon the ability to handle the responsibilities of parenting.’”)

(citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)).

Additionally, Mother waived any challenge to the decrees under Section

2511(b) by failing to raise any such challenge in her statement of questions

presented in her brief and in her concise statements of errors complained of

an appeal. See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2017)

(concluding that the appellant waived any challenge to Section 2511(b) by not

including a claim in her statement of questions presented and in her concise

statements).

Even if Mother had not waived her challenge to Section 2511(b), we

would conclude that the expert bonding evaluation admitted into evidence

supports the court’s decision that terminating Mother’s parental rights serves

the developmental, physical, and emotional well-being of the Children. See

Petitioner’s Exhibit 3. In addition, the court’s decision is supported by the

recommendation of the GAL and legal counsel for the older children, W.S., Jr.,

and N.S., wherein they indicated that the Children desired adoption. N.T.,

10/28/19, at 25-26. Accordingly, we affirm the decrees involuntarily

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terminating Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2)

and (b).

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/22/2020

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