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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF W.R.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: S.B., MOTHER : No. 1143 WDA 2016
Appeal from the Decree July 15, 2016
in the Court of Common Pleas of Blair County
Orphans’ Court, at No(s): 2016 AD 8
IN THE INTEREST OF W.R.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: S.B., MOTHER : No. 1144 WDA 2016
Appeal from the Order Entered July 15, 2016
in the Court of Common Pleas of Blair County
Civil Division, at No(s): Docket No. CP-7-DP-64-2013
FID: 7-FN-36-2013
IN THE INTEREST OF W.R.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.S., FATHER :
: No. 1242 WDA 2016
Appeal from the Decree July 15, 2016
in the Court of Common Pleas of Blair County
Civil Division, at No(s): No. 2016 A.D. 8
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 27, 2017
Before us are the appeals of S.B. (Mother) and T.S. (Father) from the
July 15, 2016 decree that terminated their parental rights to W.R.B. (Child),
as well as the July 15, 2016 order that ruled out Child’s Maternal Great-Aunt
*Retired Senior Judge assigned to the Superior Court.
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(MGA) and Maternal Great-Uncle (MGU) as placement and adoptive
resources. After careful review, we affirm as to Father and dismiss as to
Mother.
The trial court’s opinion authored for these appeals contains the
following case history. Child was born in February 2012. Blair County
Children Youth and Families (CYF) became involved with the family later that
year, receiving reports of Mother’s drug use, mental health issues, arrest
and incarceration. Upon Mother’s release from prison in February 2013, a
safety plan was put in place providing that Child would reside with her
Maternal Great-Grandmother (MGG), MGG would supervise all of Mother’s
contact with Child, and Mother would not remove Child from MGG’s
residence. However, service providers reported to CYF unsatisfactory
physical conditions in MGG’s home, a volatile relationship between MGG and
Mother, and that Mother was not attending scheduled appointments.
Mother’s criminal history dated back to July 2012, when she pled guilty
to simple assault and received a sentence of probation. Thereafter, Mother
was in and out of prison for probation violations. In June 2013, Mother
tested positive for amphetamines and marijuana, and was detained by her
probation officer. In August 2013, she pled guilty to retail theft and received
another sentence of probation.
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Father’s criminal history extends to a year before Child’s birth, when
he pled guilty to disorderly conduct. Each year thereafter brought a new
guilty plea: to recklessly endangering another person and simple assault in
2012; to retail theft, criminal mischief, and harassment in 2013; to theft by
unlawful taking and public drunkenness in 2014; and to possession of drug
paraphernalia in 2015. Father was minimally involved with Child during this
time.
Mother’s drug abuse continued, and MGG confirmed to CYF that
Mother took Child from MGG’s home at times overnight. In May 2015, the
court granted legal and physical custody to MGG and permitted only
supervised contact between Child and her parents. In June 2015, Child was
adjudicated dependent, with continued custody granted to MGG and Mother
and Father ordered to participate in services such as drug and alcohol,
mental health, and reunification services, and to comply with all
recommended treatment.
A September 2015 status conference revealed that Mother was again
residing with MGG, and Father was residing in the Cambria County Prison.
In November 2015, CYF filed a motion for a goal change, resulting in a
January 5, 2016 order changing the goal to adoption, removing Child from
MGG’s home, and vesting physical and legal custody in CYF. Mother and
MGG appealed that order. In the meantime, Child was placed with Foster
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Parents. Ultimately, MGG discontinued her appeal and this Court affirmed
the order from which Mother appealed. In Interest of W.R.B., No. 146
WDA 2016, 2016 WL 5921019 (Pa. Super. Sept. 9, 2016).
While Mother’s appeal was pending, the trial court held hearings
concerning CYF’s petition to terminate the parental rights of Mother and
Father, and Mother’s request that MGA and MGU be considered as
permanent resources for Child. After several days of hearings, the trial court
entered a decree granting CYF’s petition under 23 Pa.C.S. § 2511(a)(2),
(a)(5), (a)(8), and (b), ruled out MGA and MGU as an adoptive resource,
and directed CYF to move forward with adoption.
Mother and Father timely filed notices of appeal and statements of
errors complained of on appeal, each claiming that the trial court erred in
granting the termination petition and in ruling out MGA and MGG as a
resource. On November 9, 2016, after the appellate briefing was complete,
the parties filed in this Court a stipulation that Mother had died on October
24, 2016.
We first address the effect Mother’s death has on her appeals. “An
issue before a court is moot when a determination is sought on a matter
which, when rendered, cannot have any practical effect on the existing
controversy.” Printed Image of York, Inc. v. Mifflin Press, Ltd., 133
A.3d 55, 59 (Pa. Super. 2016) (citation and internal quotation marks
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omitted). “Where the issues in a case are moot, any opinion issued would
be merely advisory and, therefore, inappropriate.” Stuckley v. Zoning
Hearing Bd. of Newtown Twp., 79 A.3d 510, 516 (Pa. 2013).
Although we have found no Pennsylvania case that is directly on point,
we conclude that Mother’s death renders this appeal moot. Accord In re
A.Z., 190 Cal. App. 4th 1177, 118 Cal. Rptr. 3d 663 (2010) (holding the
father’s death caused the appeal from the order terminating his parental
rights to become moot); State in Interest of Minor Female Child, 470
So. 2d 595, 596 (La. Ct. App. 1985) (“The mother’s death terminated her
parental rights and renders her appeal moot.”). Further, the issues
presented are not likely to avoid review upon their repetition in other cases.
Cf. In re Estate of Border, 68 A.3d 946, 954 (Pa. Super. 2013) (reviewing
merits of appeal that was technically moot because issues, including the
powers of the orphans’ court to revoke an advance directive/power of
attorney, were capable of repetition but likely to evade appellate review).
Accordingly, because Mother’s death precludes her exercise of any parental
rights, we dismiss as moot Mother’s appeals docketed at 1143 WDA 2016
and 1144 WDA 2016.
Turning to Father’s appeal, we begin with our standard of review.
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
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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. §§ 2101-2938, which requires a bifurcated
analysis. As we explained in In re L.M., 923 A.2d 505 (Pa. Super. 2007),
[i]nitially, 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.
Id. at 511.
The governing statute provides as follows, in relevant part.1
1
We may affirm a decree terminating parental rights if we agree with the
trial court’s determination under any subsection of 23 Pa.C.S. § 2511(a). In
re N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011).
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(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. …
23 Pa.C.S. § 2511.
“The grounds for termination 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.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
Here, the trial court found that Child has never been in Father’s care or
control. Trial Court Opinion, 9/6/2016, at 29. Indeed, Father has had only
limited contact with Child since her birth. Id. Further, Father acknowledged
at the final hearing that he still was “not a resource for her.” Id. at 28.
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Father’s arguments of trial court error are as follows. He notes that,
at the time his parental rights to Child were terminated, he had just been
released from jail and “had begun the process of establishing himself in the
community, seeking employment, and treatment.” Father’s Brief at 11.
Although he conceded at the termination hearing that he was not at that
time “in position to care for [Child], he supported a reasonable alternative”:
namely placing her with MGA and MGU. Id. Father further argues that the
record “does not support more than cursory conclusions concerning [C]hild’s
bond with [F]ather.” Id.
We are unpersuaded by Father’s arguments. Initially we note that the
determination of where a dependent child is placed is not based upon the
wishes of the parent. In re K.C., 903 A.2d 12, 14–15 (Pa. Super. 2006)
(“When a child is adjudicated dependent, the child’s proper placement turns
on what is in the child’s best interest, not on what the parent wants….”).
Thus, the trial court was under no obligation to accede to Father’s wishes to
place Child with MGA and MGU.2
2
Moreover, the record supports the trial court’s decision to rule out MGA and
MGU as resources for Child. CYF caseworker Kendra Wheelden offered
testimony to show that the involvement of MGA and MGU had failed to serve
Child’s best interests. N.T., 6/21/2016, at 1-19. From this, the trial court
reasonably concluded that placement with MGA and MGU presented a
significant risk that Child would “continue to be exposed to volatile situations
and police involvement.” Trial Court Opinion, 9/6/2016, at 27.
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More importantly, “[t]he courts of this Commonwealth have long held
that 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.” In re
Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (citation and internal
quotation marks omitted).
At no point in Child’s life has Father demonstrated a willingness and
ability to parent Child. Father offered no testimony regarding when, if ever,
he will be able to do. Based upon his history and seeming lack of interest in
Child, the trial court did not err in concluding that Father will not remedy the
causes of his failure to provide parental care to Child. See, e.g., In re
Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (affirming
mother’s termination under subsection 2511(a)(2) where, after failing to
comply with services upon her release from incarceration, she “failed to
establish and maintain a lifestyle that would permit her to provide long-term
care for [c]hild, and [she] cannot remedy the causes of [c]hild’s placement
within a reasonable time”). Father’s arguments as to the trial court’s
findings under subsection 2511(a)(2) are without merit.
Nor are we persuaded that the trial court erred in finding under
subsection 2511(b) that Child’s best interests are served by terminating
Father’s rights and freeing Child for adoption.
Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child. …
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[T]he 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. However, in cases
where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. Accordingly,
the extent of the bond-effect analysis necessarily depends on the
circumstances of the particular case.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (internal
citations and quotation marks omitted).
CYF presented ample evidence that Foster Parents are meeting Child’s
developmental, physical, and emotional needs, and that Child is bonded with
them, particularly with Foster Mother. See N.T., 6/28/2016, at 43 (Foster
Mother testifying as to Child’s increasing comfort and affection for Foster
Parents); id. at 66-67 (therapist Jennifer Johnson testifying that Child is
“very comfortable” with Foster Parents and has connected with Foster
Mother in a way helpful to her development). In May 2016, Child’s sister,
D.B.,3 joined her in living with Foster Parents, causing Child to be “the most
excited big sister.” Id. at 45. D.B.’s arrival in the home led to Child viewing
them as a family, with Child beginning to call Foster Father “daddy.” Id. at
46. In Foster Parents’ care, Child is receiving the structure and attention
she needs. Id. at 67, 70.
Conversely, Father offered no testimony of any interaction with Child.
There is no record evidence that Child even knew her Father, let alone that
3
Father testified that he may be the father of D.B., but wanted a DNA test
to confirm. N.T., 6/28/2016, at 127-28.
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she had a bond with him such that she would suffer any harm from
permanently removing him from her life. In re K.Z.S., 946 A.2d 753, 762-
63 (Pa. Super. 2008) (“In cases where there is no evidence of any bond
between the parent and child, it is reasonable to infer that no bond exists.”).
Accordingly, the trial court acted in its discretion in concluding that CYF met
its burden under subsection 2155(b).
Thus, the record supports the trial court’s determinations that Child
had been in placement for well over 12 months, Father still is unable to
parent her, and terminating Father’s rights best served Child’s
developmental, physical, and emotional needs and welfare. The trial court
did not err in granting CYF’s petition as to Father.
Appeals at 1143 WDA 2016 and 1144 WDA 2016 dismissed as moot.
Decree at 1242 WDA 2016 affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2017
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