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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: K.R.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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:
APPEAL OF: N.J., MOTHER :
:
:
:
: No. 1623 MDA 2021
Appeal from the Decree Entered November 8, 2021
In the Court of Common Pleas of York County
Orphans’ Court at 2021-0148a
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED APRIL 20, 2022
N.J. (Mother) appeals from the involuntary termination of her parental
rights to K.R.J. (Child), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5) and
(b) of the Adoption Act.1 After careful review, we affirm.
On June 13, 2020, the York County Office of Children, Youth and
Families (CYF), received a referral regarding Child, who was just a few days
old. See Orphans’ Court Opinion, 1/3/22, at 1. Child was hospitalized in
neonatal intensive care after being born addicted to Mother’s psychotropic
medication and experiencing respiratory issues. Id. In addition, Mother
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* Retired Senior Judge assigned to the Superior Court.
1J.J.O.-C. (Father) consented to termination of his parental rights to Child,
and the court entered a corresponding decree on December 10, 2021. See
N.T., 12/10/21, at 3-4, 6.
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“appeared ‘blank’” after Child’s birth, and hospital staff expressed concern that
Mother lacked any bond with Child. Id. at 2.
CYF filed for emergency protective custody based on Mother’s mental
health issues, which included schizophrenia, limited intellectual functioning,
and a history of prior inpatient hospitalizations. Id. at 1-2. The court granted
relief, and entered a shelter care order on June 23, 2020. Shortly thereafter,
CYF filed a dependency petition, which the court granted, following a hearing
on June 29, 2020. The court placed Child in kinship care with the goal of
reunifying Mother and Child. Id. at 2-3; N.T., 11/5/21, at 36. CYF enlisted
services from the Nurse Family Partnership, Service Access Management,
Family Child Resource, and Pressley Ridge Intensive Family Services to assist
Mother with mental health and parenting issues. However, the services “were
closed out as unsuccessful for lack of progress and for lack of contact from
Mother.” Orphans’ Court Opinion, 1/3/22, at 7.
On July 1, 2021, CYF petitioned for the involuntary termination of
Mother’s parental rights. The court held a hearing on November 5, 2021. CYF
caseworker, Marla Speir, testified about Mother’s failure to visit with Child.
N.T., 11/5/21, at 39-42, 57. Mother was initially scheduled for supervised
visitation twice a week. Id. However, as Mother regularly failed to appear,
CYF reduced visits to every other week. Id. at 39-42. In May 2021, Mother,
without explanation, stopped appearing entirely. Id. Nonetheless, CYF
continued to schedule visits through mid-November 2021. Id.
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Ms. Speir further testified about Mother’s failure to participate in mental
health and parenting services, noting that providers closed out their files
because of Mother’s lack of progress and repeated failure to appear. Id. at
45-48. Ms. Speir noted Mother never progressed to unsupervised visits. Id.
at 49. She explained that case aides, who monitor visits and are not supposed
to intervene, were repeatedly involved because when Mother attended visits,
she failed to act appropriately, which resulted in concerns for Child’s safety.
Id. at 49-52. Intervention was necessary even though a parenting skills coach
had worked with Mother one-on-one during many of the visits. See id. at 20-
30, 49-52; N.T., 5/12/21, at 12-21.
The orphans’ court terminated Mother’s parental rights by decree
entered November 8, 2021. Mother timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The orphans’ court filed a Rule 1925(a) opinion on
January 3, 2022.
Mother raises two issues for review:
1. WHERE THE [ORPHANS’] COURT TERMINATES THE PARENTAL
RIGHTS OF A NATURAL PARENT SUFFERING FROM A DEGREE
OF MENTAL DISABILITY, INCLUDING SOME COGNITIVE
DEFICITS, BORDERLINE INTELLECTUAL FUNCTIONING, AND
AN IQ OF 76, AND THE RECORD FROM THE DEPENDENCY CASE
PRECEDING THE TERMINATION CASE IS INCORPORATED INTO
THE RECORD OF THE TERMINATION CASE, AND WHERE THE
RECORD DOES NOT REFLECT THAT THE COUNTY CHILDREN
AND YOUTH AGENCY MADE REASONABLE ACCOMMODATION
FOR THE NATURAL PARENT TO PARTICIPATE AND RECEIVE
THE BENEFITS FROM THE SERVICES OFFERED ON EQUAL
FOOTING WITH PERSON[S] WHO ARE NOT DISABLED,
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SHOULD THE [ORPHANS’] COURT’S TERMINATION OF
PARENTAL RIGHTS BE REVERSED?
2. WHERE THE [ORPHANS’] COURT TERMINATES PARENTAL
RIGHTS OF A NATURAL PARENT WITHOUT A RECORD THAT
SUPPORTS A FINDING THAT TERMINATION WOULD BEST
SERVE THE INTERESTS OF THE CHILD, SPECIFICALLY
REGARDING THE EXISTENCE OF A BOND BETWEEN THE CHILD
AND PARENT, SHOULD THE [ORPHANS’] COURT’S
TERMINATION OF PARENTAL RIGHTS BE REVERSED?
Mother’s Brief at 4.
We begin by recognizing:
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 omitted).
Section 2511 of the Adoption Act governs the termination of parental
rights, and 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
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parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
Interest of S.S., 252 A.3d 681, 686 (Pa. Super. 2021) (citations omitted).
Here, the orphans’ court found the evidence supported termination
pursuant to Sections 2511(a)(1), (2), (5) and (b), which provide:
(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.
(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.
***
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency
for a period of at least six months, the conditions which led
to the removal or placement of the child continue to exist,
the parent cannot or will not remedy those conditions within
a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the 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,
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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), (2), (5) and (b).
In her first issue, Mother does not claim that CYF failed to establish
grounds for termination under § 2511(a). Rather, Mother argues termination
was not warranted because CYF failed to accommodate her disabilities
pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12131,
et seq. Mother contends:
The termination of [Mother’s] parental rights in the minor child
should be reversed because [CYF] did not reasonably
accommodate [Mother’s] disabilities during the dependency case,
and the dependency case record was incorporated into the
termination case record.
***
Throughout the companion dependency case, CYS was aware of
the extent and nature of [Mother’s] mental disabilities.
Throughout the companion dependency case, CYS made no
accommodations for [Mother’s] mental disabilities, including but
not limited to her cognitive disabilities.
Mother’s Brief at 10.
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Mother’s argument is undeveloped. She does not cite legal authority to
support her allegation of an ADA violation.2 See id. at 8-11. While Mother
generally claims CYF failed to provide reasonable accommodations, Mother
does not elaborate. She does not cite anywhere in the record where she
requested accommodations and/or that CYF denied accommodations. Id.
When an appellant cites no authority supporting an argument, this
Court is inclined to believe there is none. See Pa. R.A.P. 2119(a)
and (b) (requiring an appellant to discuss and cite pertinent
authorities); Commonwealth v. Antidormi, 84 A.3d 736, 754
(Pa. Super. 2014) (finding issue waived because the appellant
“cited no legal authorities nor developed any meaningful
analysis”).
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. Super.
2015). It is not our role to develop an appellant’s argument. See
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en
banc); see also Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.
2007) (“[I]t is an appellant’s duty to present arguments that are sufficiently
developed for our review.”); Bombar v. West Am. Ins. Co., 932 A.2d 78,
94 (Pa. Super. 2007). Mother has not presented a cogent argument on this
issue; thus it is waived.
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2 The record shows Mother received mental health referrals to at least two
providers, and parenting service referrals from an additional three providers.
All of the referrals were unsuccessful due to Mother’s lack of participation.
See Orphans’ Court Opinion, 1/3/22, at 7-9; N.T. 11/5/21, at 45-48. See
also, N.T., 5/12/21, at 12-21 (detailing CYF’s efforts in arranging one-on-one
parenting coaching for Mother).
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Waiver notwithstanding, Mother would not be entitled to relief. In In
the Interest of J.J.L., 150 A.3d 475 (Pa. Super. 2016), a mother alleged the
court erred in terminating her parental rights where, “the agency failed to
modify its policies, practices, and procedures to accommodate mother’s
intellectual disability, thereby depriving her of meaningful and equal access to
the agency’s reunification services in contravention of the [ADA.]” J.J.L., 150
A.3d at 479. This Court disagreed. We held that “the ADA is not applicable
to a proceeding regarding the termination of parental rights under the
Adoption Act.” Id. at 482 (citation omitted). We explained:
Assuming arguendo that Mother falls within the ADA’s definition
of a “qualified individual with a disability,” the relevant inquiry
would become whether CYS provided her with reasonable
accommodations to allow her to participate and receive the
benefits from the services offered on an equal footing with persons
who are not disabled. … As previously explained the trial court’s
focus is on the child’s best interests. To accept Mother’s assertion
would require the trial court and this Court to ignore the best
interests of the Child and focus instead on the needs of Mother.
This we cannot do. See In re J.S.W., 438 Pa.Super. 46, 651 A.2d
167 (1994) (stating “[o]nce a child is adjudicated dependent, the
issues of custody and continuation of foster care are determined
according to [the] child’s best interests.”). Since the ADA adds
nothing to the trial court’s fulfillment of its mandates … we find its
application is not properly before this Court for review.
We recognize that an agency must put forth a good faith effort in
making services available to a parent. In re Adoption of J.J.,
511 Pa. 590, 515 A.2d 883 (1986). To the extent Mother
complains that the trial court erred in finding CYS put forth a good
faith effort in providing services, such a contention is belied by the
record. Moreover, Mother fails to even explain what services were
denied or how the services provided were not on an equal footing
with nondisabled individuals. A parent, whether disabled or not,
must be able to meet the irreducible minimum parental
requirements contained in the Juvenile Act for return of a child in
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CYS’s care. If a parent cannot or will not meet her irreducible
minimum parental responsibilities, the needs of the child must
prevail over the rights of the parent. We do not believe the ADA
requires that a disabled parent be offered a plan the parent can
meet if such plan would then be insufficient to address the
irreducible minimum parental responsibilities.
Id. at 481-82 (some citations omitted).
We have also explained that “reasonable efforts by an agency at
reunification are not required for termination of parental rights.” Adoption
of A.L.E., 2019 WL 2525844, at *18 (Pa. Super. Jun. 19, 2019) (unpublished
memorandum) (citing J.J.L., supra at 482).3
By the time a termination petition has been filed, it is too late for
a parent to argue that a child welfare agency failed to make
sufficient or reasonable efforts to reunite the parent and children.
Such an argument should have been made in the dependency
court:
Section 6351 details the required findings and
determinations that a Juvenile Court must make in
regard to dependent children, ... Section (f) speaks to
the “matters to be determined at [a] permanency
hearing,” including “[w]hether reasonable efforts
were made to finalize the permanency plan in effect.”
[42 Pa.C.S.A.] § 6351(f)(5.1).
[In re] D.C.D., 105 A.3d [662,] 673 [(Pa. 2014)]; see also id.
at 677 (Eakin, J., concurring) (“Neither § 2511 of the Adoption Act
nor § 6531 of the Juvenile Act preclude a court from ordering the
termination of parental rights where a child-welfare agency fails
to provide reasonable efforts to promote reunification.
Incorporating a reasonable-efforts requirement at the
termination-of-parental-rights stage would do nothing more than
improperly punish children, as their placement in foster care
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3 Pa.R.A.P. 126 permits citation to unpublished decisions filed after May 1,
2019. See Order Amending Rule 126 of the Pennsylvania Rules of Appellate
Procedure, No. 278 (Pa. 2019).
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would be unjustly lengthened solely as a result of an agency’s
deficiencies.” (footnotes omitted)).
A.L.E., 2019 WL 2525844, at *18.
Mother did not dispute her family services plans or appeal the
dependency review orders. See N.T., 11/5/21, at 36-38. We are unconvinced
by Mother’s unsupported argument that incorporation of the dependency
proceedings in the termination proceedings allows her to raise an ADA claim
at this stage. Mother’s ADA claim does not merit relief. J.J.L., supra at 482.
Although Mother does not challenge the orphans’ court determination
regarding grounds for termination under § 2511(a)(1), (2), or (5), we address
subsection 2511(a)(1). See Interest of A.M., 256 A.3d 1263, 1270 (Pa.
Super. 2021) (we need only agree with the court as to one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm).
To meet the requirements of this subsection, “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.” In re Adoption of B.G.S., 245 A.3d 700, 706 (Pa.
Super. 2021) (citation omitted). The court must consider “the parent’s
explanation for his or her conduct” and “the post-abandonment contact
between parent and child.” Id. (citation omitted). A parent “does not perform
his or her parental duties by displaying a merely passive interest in the
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development of a child.” In re Adoption of B.G.S., 240 A.3d 658, 665 (Pa.
Super. 2020).
Child was adjudicated dependent shortly after her birth in June 2020
and Mother made no progress to remedy the conditions that led to Child’s
removal. Mother failed to engage in mental health and parenting services,
and visited only sporadically with Child. She last visited Child on May 18,
2021, and did not explain why she stopped visiting. When questioned at the
hearing, Mother stated:
Okay, I’ve been having a lot of problems with family issues
because — like, I lost a family member, like a friend that’s like a
family member to me. And I’ve been going through a lot, and I’ve
been going like, into the hospital to get help and stuff with my
medicine so I can get better and feel better so I can at least try
to get her back.
N.T., 11/5/21, at 64.
As we have explained:
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 Q.R.D., 214 A.3d 233, 241 (Pa. Super. 2019) (citations omitted).
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The record confirms Mother failed to progress with her family service
plans pertaining to her mental health and parenting capabilities, and
maintained only a “passive interest” in Child by occasionally visiting Child.
N.T., 11/5/21, at 62-63. Thus, the record supports the termination under
subsection 2511(a)(1).
In her second issue, Mother contends the orphans’ court erred in finding
termination served Child’s needs and welfare. She maintains there “does not
exist clear and convincing evidence of a lack of bonding in this case. Moreover,
in this case, the bonding process here presumably was inhibited by the fact
that the minor child was taken from [Mother] at birth.” Mother’s Brief at 12.
With respect to Section 2511(b), “[i]ntangibles such as love, comfort,
security, and stability are involved in the inquiry into the needs and welfare
of the child.” In re Adoption of A.H., 247 A.3d 439, 444 (Pa. Super. 2021)
(citations omitted). The 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. at 445 (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.” Id. (citations omitted).
Here, the orphans’ court explained:
In regard to 23 Pa.C.S.A. § 2511(b), it is clear from the record
that CYF offered clear and convincing evidence for the Court’s
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consideration that the developmental, physical, and emotional
needs and welfare of [Child are] best served by terminating
parental rights. [Child] has been with the kinship resource since
she was about two weeks old. The kinship resource works for a
school system as a personal care assistant for autistic children.
[Child] is bonded with the kinship resource. The CYF caseworker,
Marla Speir, testified that Child does not have a bond with the
Mother whom she has not seen in six months, and the child
considers the resource parent to be her mother.
BY [Counsel for CYF]:
Q. Does the minor child appear to be safe in the
current foster home setting?
A. Yes.
Q. Based upon your review of the file, based upon
your interaction with the mother, as well as the minor
child and the resource family, does the minor child
have any type of parental bond with the mother?
A. With the mother, no. She hasn’t seen her since
May 18th.
Q. And based upon your review of the file and
interaction with the family, does the minor child
appear to be appropriately bonded to the resource?
A. She is bonded to the resource mother. I would say
she considers her mother. She’s had her since she
was about two weeks old.
Q. Do we have any indication the minor child has
inability to bond with parental type figures?
A. No.
Q. If you know, is the minor child beginning to talk
now?
A. Yes.
Q. Do you know what she calls the resource parent?
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A. Um-hum. Mama, mommy or mom.
Attorney Yost, legal counsel for the minor child, testified that
[Child] is bonded not only to the foster mom, but to the other
children in the house as well. [Child] is now about eighteen
months old. [Child] is on track developmentally and attends Early
Intervention and is walking and running. She is up to date on her
immunizations. She is in a safe environment with the kinship
resource with whom she has developed a parental bond.
Orphans’ Court Opinion, 1/3/22, at 15-16 (record citations omitted).
Again, the record supports the orphans’ court’s conclusion. Child was
removed from Mother’s care shortly after birth, and Mother has visited Child
only sporadically. At the time of the termination hearing, Mother had not
visited Child for six months. N.T., 11/5/21, at 40-43. Conversely, Ms. Speir
testified Child has resided in the same kinship, pre-adoptive home since
Child’s placement in June 2020, and Child is closely bonded to her foster
mother. Id. at 44-45, 53-54, 66. Our Supreme Court has stated, “[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,” and “must keep the ticking clock of childhood ever in
mind.” In re T.S.M., 71 A.3d at 268-69. Accordingly, we discern no error.
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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