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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: D.I.S., A MINOR : PENNSYLVANIA
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APPEAL OF: A.N.S., MOTHER :
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: No. 1227 WDA 2021
Appeal from the Decree Entered September 17, 2021
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 2021-00068
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: D.S., A MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.N.S., MOTHER :
:
:
:
: No. 1228 WDA 2021
Appeal from the Decree Entered September 17, 2021
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 68A in Adoption 2021
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 20, 2022
A.N.S. (“Mother”) appeals from the decrees terminating her parental
rights to her children, D.I.S. (approximately seven-years-old) and D.S. (over
four-years-old). On appeal, Mother contends the trial court erred by failing to
acknowledge that she was making good faith efforts to comply with her court-
ordered treatment plan. She also claims the trial court erred in finding that
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termination of her parental rights served the best interests of the children.
After careful review, we affirm.
In early 2020, Erie County Office of Children and Youth Services (“the
Agency”) was concerned about D.I.S. and D.S. because another of Mother’s
children had been placed in kinship care due to issues with Mother. The Agency
lost contact with Mother, D.I.S., and D.S. for several months and initiated a
search to locate them.
In June 2020, the Agency successfully located the children in Buffalo,
New York. The children were living with relatives of their father. The Agency
had both children returned to Erie County due to concerns of physical abuse
and neglect at the hands of father’s relatives. The Agency still could not locate
Mother.
At the June 25, 2020 dependency hearing, Mother stipulated that the
children were dependent due to Mother’s leaving the children in the care of
inappropriate individuals and her pending criminal charges. The reunification
plan directed Mother to submit to urinalysis, participate in a drug and alcohol
assessment as well as a mental health assessment, procure stable
employment and housing, and comply with the Agency’s guidelines.
On June 11, 2021, the Agency filed petitions to terminate Mother’s rights
to the children, alleging that Mother had failed to comply with the reunification
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plan. After a hearing on the petitions, the trial court entered decrees
terminating Mother’s parental rights, and this timely appeal followed.1
On appeal, Mother claims the trial court erred in terminating her
parental rights. We apply a deferential standard of review in appeals from
orders terminating parental rights:
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 governs the involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. 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
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1 The trial court’s decrees simultaneously terminated the parental rights of the
children’s biological father. The terminations of the father’s parental rights are
not subject to this appeal. Further, the trial court addressed both children in
a single opinion on appeal, as the factors leading to termination of Mother’s
rights were not significantly different between the children.
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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).
The Agency bore the burden of proving, by clear and convincing
evidence, that the asserted grounds for seeking the termination of parental
rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, “[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. (citation and internal quotation marks omitted).
Here, the court terminated Mother’s parental rights to both children
pursuant to Section 2511(a)(1), (a)(2), (a)(5), (a)(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), to affirm. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc).2
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2 Mother’s brief on appeal only raises explicit arguments against the trial
court’s conclusions pursuant to subsection (a)(1), (a)(2), (a)(5), and (b).
Other than a brief mention in her opening sentence, Mother does not reference
the trial court’s conclusion under (a)(8). We could therefore affirm the
termination on the basis of (a)(8), as Mother has waived any challenge to that
conclusion. See Branch Banking and Trust v. Gesiorski, 904 A.2d 939,
942-943 (Pa. Super. 2006) (“When issues are not properly raised and
developed in briefs, when the briefs are wholly inadequate to present specific
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We therefore address Mother’s claim under subsection (a)(2). Under
section 2511(a)(2), the Agency was required to establish, by clear and
convincing evidence, that: (1) the parent’s conduct demonstrates repeated
and continued incapacity, abuse, neglect or refusal to assume parental
responsibility for the child; (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 parent will not
remedy the causes of the incapacity, abuse, neglect or refusal. See In re
Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). The grounds
for termination of parental rights under section 2511(a)(2) are not limited to
affirmative misconduct; to the contrary, those grounds may include acts of
refusal as well as incapacity to perform parental duties. See In re A.L.D. 797
A.2d 326, 337 (Pa. Super. 2002).
Here, the evidence was straightforward. The children were found to be
dependent because Mother had voluntarily abandoned the children to the care
of paternal relatives in Buffalo. See Dependency Petition of D.S., filed
6/17/20, at 4; N.T., IVT Hearing, 8/17/21, at 21. As part of the reunification
plan, Mother was directed to submit to drug, alcohol, and mental health
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issues for review[,] a Court will not consider the merits thereof”). In an
abundance of caution, however, we will address Mother’s challenge pursuant
to subsection (a)(2).
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assessments, obtain stable housing and employment, and otherwise comply
with the Agency’s recommendations. See N.T., IVT Hearing, 8/17/21, at 22.
As of the filing of the petitions to terminate Mother’s rights, she had
failed to have any contact with the Agency, and had not complied with any of
the terms of the reunification plan. See id., at 27-9, 31. By the time of the
hearing, Mother had not had any visitation with the children for over a year
and had not remedied any of the circumstances that led to the children being
found dependent. See id., at 36. Perhaps most importantly, Mother was
incarcerated and was facing revocation of probationary sentences due to
additional pending criminal charges. See id., at 36-7.
Mother admitted she was incarcerated at the time of the hearing. See
id., at 94. She acknowledged that she was homeless before she was
incarcerated. See id. She also acknowledged she was unemployed before she
was incarcerated. See id., at 99. She testified that her failure to follow the
Agency’s treatment plans “was not a good decision on my part.” Id., at 101.
This evidence was sufficient to establish that Mother had displayed a
continued course of neglect that caused the children to be without essential
parental care. Mother’s continued criminal conduct and failure to complete any
of the requirements of the reunification plan support the trial court’s
conclusion that Mother cannot remedy this neglect going forward.
Mother argues the trial court failed to acknowledge her testimony that
she was attempting to alleviate concerns that brought her children
into care. [Mother] acknowledged that she had not followed the
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court-ordered services; however, she was working with Safe
Harbor and her [blended case manager] for mental health and
drugs and alcohol. She ran into several setbacks due to the loss
of her home due to fire and the onset of the pandemic, but she
remained committed to wanting to reunify with her children.
Appellant’s Brief, at 10. However, a review of the trial court’s opinion on
appeal reveals the court was aware of Mother’s testimony. See Trial Court
Opinion, 11/16/21, at 42-53. The court simply did not find Mother credible
due to her history of crimes of dishonesty and conflicts between Mother’s IVT
testimony and the transcripts of previous hearings. See id., at 54. Mother
does not provide any reason for this Court to conclude the trial court’s
credibility determinations were an abuse of discretion. We are therefore bound
by those credibility determinations and Mother’s first issue on appeal merits
no relief.
We therefore turn to Mother’s argument that the Agency failed to
establish that termination was justified under Section 2511(b). Pursuant to
Section 2511(b), the court was required to examine whether termination of
parental rights would best serve the developmental, physical, and emotional
needs and welfare of the children. See In re C.M.S., 884 A.2d 1284, 1286-
1287 (Pa. Super. 2005). “Intangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs and welfare of the child.”
Id., at 1287 (citation omitted).
Our Supreme Court has stated the following:
[I]f the grounds for termination under subsection (a) are met, a
court shall give primary consideration to the developmental,
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physical and emotional needs and welfare of the child. . . . In In
re E.M., 620 A.2d [481,] 485 [(Pa. 1993)], this Court held that
the determination of the child’s needs and welfare requires
consideration of the emotional bonds between the parent and
child. The utmost attention should be paid to discerning the effect
on the child of permanently severing the parental bond.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations and quotation
marks omitted).
In a termination of parental rights case, the trial court is required to
consider “whatever bonds may exist between the children and [the natural
parent], as well as the emotional effect that termination will have upon the
children.” In re Adoption of A.C.H., 803 A.2d 224, 229 (Pa. Super. 2002)
(citation omitted). In conducting a bond analysis, the court is not required to
use expert testimony. See In re Z.P., 994 A.2d at 1121.
“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, 763 (Pa.
Super. 2008). The panel in In re K.Z.S. emphasized that, in addition to a
bond examination, the court can equally emphasize the safety needs of the
child. See id., at 760.
On appeal, Mother highlights testimony from her sister-in-law, H.S.,
who is D.S.’s foster parent.3 Mother argues that H.S. acknowledged Mother
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3 Mother’s argument challenging the trial court’s conclusion pursuant to
Section 2511(b) does not reference D.I.S. at all. Therefore, Mother has
technically abandoned any claim that the trial court erred in finding
termination served D.I.S.’s best interests. Despite this failure, we will review
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had a bond with D.S. See Appellant’s Brief, at 11. However, H.S. also testified
that, while D.S. is confused about his relationship with Mother, he would not
suffer any ill effects from the termination of Mother’s parental rights. See N.T.,
IVT Hearing, 8/17/21, at 86.
Further, the Agency caseworker involved in this case testified that
neither child would suffer from termination of Mother’s parental rights. See
id., at 38-39. The caseworker expanded on this opinion by noting that it would
be in the best interest of each child to terminate Mother’s rights. See id. She
reached this conclusion because the children are currently placed with two
separate families and are therefore separated from each other. See id., at
55-6. Neither child is currently placed with a family that is considered a
permanent resource. See id., at 48. Termination of Mother’s parental rights
would make it easier for the Agency to find an adoptive family for both
children. See id., at 49.
Under these circumstances, Mother has not established that the trial
court erred or abused its discretion. The court’s finding that termination of
Mother’s parental rights was in the best interest of both children is well
supported by the record. Mother’s final argument on appeal therefore merits
no relief.
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whether the Agency met its burden with respect to D.I.S. under Section
2511(b), as the analysis is identical to the analysis for D.S.
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As we conclude the trial court’s findings and conclusions that termination
were justified pursuant to Section 2511(a)(2) and (b), we affirm both decrees.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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