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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: W.E.A.O., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: J.O., MOTHER
No. 3021 EDA 2016
Appeal from the Decree July 28, 2016
In the Court of Common Pleas of Pike County
Civil Division at No(s): 11-2016-OA
BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED JANUARY 31, 2017
J.O. (“Mother”) appeals from the July 28, 2016 decree in the Court of
Common Pleas of Pike County involuntarily terminating her parental rights to
her son, W.E.A.O. (“Child”), born in May of 2015.1 We affirm.
We summarize the factual and procedural history of this case as
follows. Child was removed from Mother’s custody in May of 2015, when he
was three days old, due to deplorable conditions in Mother’s home. Trial
Court Opinion, 9/14/16, at 1; N.T., 7/27/16, at 9. The trial court
adjudicated Child dependent on June 3, 2015. Trial Court Opinion, 9/14/16,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
By separate decree entered on July 28, 2016, the trial court involuntarily
terminated the parental rights of J.R., Jr. (“Father”). Father did not appeal.
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at 1. Pike County Children and Youth Services (“CYS”) developed a Family
Service Plan (“FSP”) that required Mother to provide a nurturing
environment during visits with Child; provide clean, safe, and stable housing
for Child; complete a parenting services program; comply with mental health
requirements; meet the Child’s medical needs; and cooperate with CYS. Id.
at 2; N.T., 7/27/16, at 22, 26.
On June 10, 2016, CYS filed a petition for the involuntary termination
of Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8), and (b). A hearing occurred on July 27, 2016, during which CYS
presented the testimony of its caseworkers, Jennifer Dargenio and Shannon
Wisniewski. Mother was present and represented by counsel, but she did
not testify.
By decree dated July 27, 2016, and entered on July 28, 2016, the trial
court involuntarily terminated Mother’s parental rights. Mother timely filed a
notice of appeal and a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b).
The trial court filed its Rule 1925(a) opinion on September 14, 2016.
On appeal, Mother presents the following issues for our review:
1. Whether the [t]rial [c]ourt erred and abused its discretion by
terminating Natural Mother’s parental rights because there was a
lack of clear and convincing evidence presented that Natural
Mother has refused or failed to perform parental duties[?]
2. Whether the [t]rial [c]ourt erred and abused its discretion by
terminating Natural Mother’s parental rights because there was a
lack of clear and convincing evidence presented that Natural
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Mother cannot or will not remedy a continued incapacity, abuse,
or neglect and caused the child to be without essential parental
care, control or subsistence necessary for his physical or mental
well-being[?]
3. Whether the [t]rial [c]ourt erred and abused its discretion by
terminating Natural Mother’s parental rights because there was a
lack of clear and convincing evidence presented that the
conditions that led to the removal or placement of the child
continues to exist, and that the parent cannot or will not remedy
the conditions within a reasonable period of time[?]
Mother’s brief at 6.
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
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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).
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 decree pursuant to Section
2511(a)(1) and (b), 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:
(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.
...
(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
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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), (b).
This Court has explained as follows:
To satisfy the requirements of section 2511(a)(1), 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 R.J.S., 901 A.2d 502, 510
(Pa. Super. 2006). In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to [s]ection 2511(a)(1)
if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to
perform parental duties.
In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
91 (Pa. 1998).
Once the evidence establishes a failure to perform
parental duties or a settled purpose of relinquishing
parental rights, the court must engage in three lines
of inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child
pursuant to Section 2511(b).
Id. at 92 (citation omitted).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008). Further, we have
stated that, “the trial court must consider the whole history of a given case
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and not mechanically apply the six-month statutory provision.” In re
N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
This Court has defined parental duty as follows:
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 encompasses more than a financial
obligation; it 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.
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with . . . her physical and emotional
needs.
In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004).
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, 1287 (Pa. Super. 2005) (citation omitted). Further, the trial court
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“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).
Instantly, Mother argues that the trial court abused its discretion in
involuntarily terminating her parental rights pursuant to Section 2511(a)(1)
by mechanically applying “the six (6) month statutory provision without
taking into consideration the entire case.” Mother’s brief at 12. Specifically,
Mother asserts that she “has been involved with [CYS], completed her
parenting program, attended visits and listened to instructions, and has
attempted to resolve her housing issue.” Id. In addition, Mother asserts
that she was living in a new home at the time of the termination hearing.
Id. at 11. We discern no abuse of discretion.
The trial court terminated Mother’s parental rights based on the
following factual findings, in relevant part:
[W]hile this [c]ourt acknowledges that [Mother] completed her
regular mental health evaluation, [Mother] had still not
completed her required mental health disability service
evaluation. [A]lthough [Mother] had completed the parent
training course and attended all visits during the first few
months of placement, [Mother] volitionally chose to see the Child
less frequently, failed to attend all scheduled visits (sometimes
without notice), attended none of the Child[’s] medical
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appointments, failed to take advantage of [CYS’s] transportation
services to attend visits, and demonstrated an inability to
interact with and properly care for the Child during visits.
Moreover, [Mother’s] decreased attendance of parent-child visits
occurred primarily in the six months immediately prior to the
filing of the [p]etition for the [i]nvoluntary termination. . . .
[W]hile [Mother] eventually obtained housing, she did so only
after the filing and notice of the Petition for Involuntary
Termination. Moreover, it has not been determined if the
housing is suitable for the Child, nor did [Mother] properly
communicate or cooperate with [CYS] regarding housing. [T]he
Child is safe and receiving proper, cooperative care in the pre-
adoptive home.
Trial Court Opinion, 9/14/16, at 8-9.
Upon review, the testimony of Jennifer Dargenio and Shannon
Wisniewski, the CYS caseworkers, supports the court’s findings. In its Rule
1925(a) opinion, the trial court aptly summarized the caseworkers’
testimony, which we adopt herein. Trial Court Opinion, 9/14/16, at 2-5.
Specifically, Jennifer Dargenio testified that Mother obtained a mental
health evaluation, which recommended that she attend counseling, but that
CYS did not know whether Mother had been attending those appointments.
N.T., 7/27/16, at 34. She testified that Mother had not completed a court-
ordered development disability mental health evaluation. Id.
With respect to visitation, Ms. Dargenio testified that Mother “does not
attend them on a regular basis.” Id. at 13. She testified that out of a total
of 73 scheduled visits, Mother attended 48. Id. Mother either cancelled or
failed to appear for 25 visits. Id. Ms. Dargenio testified that Mother, at a
time unspecified in the record, requested her visits be decreased from the
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then weekly four hours because she “didn’t know what to do with the child
for two hours one day and then two hours the next day. . . .” Id. at 14. As
a result, in January of 2016, CYS decreased her weekly visits to two hours.
Id. at 17. Thereafter, Mother attended the visits sporadically, and she did
not attend the scheduled visit on Child’s first birthday. Id. at 17-20, 64. By
the time of the hearing, CYS had further decreased her visits to biweekly for
one hour. Id. at 13-14. Mother’s last visit with the Child before the hearing
was in April of 2016. Id. at 20.
Further, Ms. Dargenio testified that, although Mother completed a
parenting program, she “was not able to use what she learned in the
program with the child. There were workers that have helped her during
visits to come up with appropriate ways of interacting with the child.” Id. at
32.
With respect to housing, Ms. Dargenio testified that Mother’s housing
was unstable during Child’s dependency, and that she would not allow CYS
access to her housing. Id. at 29-31. At the time of the filing of the
involuntary termination petition, Mother did not have housing. Id. at 10,
40-41. Ms. Dargenio testified that, on July 25, 2016, two days before the
hearing, she became aware that Mother obtained housing. Id. at 41. She
testified that CYS has not inspected the home. Id. at 42.
In addition, Ms. Dargenio testified that Mother has never attended any
of Child’s medical appointments. Id. at 31. Further, she testified that Child
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has resided in a pre-adoptive foster home since his placement, and that his
foster parents are meeting his needs. Id. at 9, 12.
As such, the testimonial evidence reveals that for at least the six
months prior to the filing of the termination petition, Mother failed to
perform her parental duties by not satisfying her FSP requirements
regarding mental health, visitation, parenting skills, housing, and attending
Child’s medical appointments. Therefore, we conclude that the trial court
did not abuse its discretion in terminating Mother’s parental rights pursuant
to Section 2511(a)(1). Mother’s first issue fails. Based on this disposition,
we need not consider Mother’s second and third issues.
Mother does not raise an issue with respect to Section 2511(b).
Nonetheless, we have scrutinized the decree pursuant to the requisite
bifurcated analysis.
Our Supreme Court has stated that, “[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.” T.S.M., supra at 268. The Court directed that, in weighing the
bond considerations pursuant to Section 2511(b), “courts must keep the
ticking clock of childhood ever in mind.” Id. at 269. The T.S.M. Court
observed that, “[c]hildren are young for a scant number of years, and we
have an obligation to see to their healthy development quickly. When courts
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fail . . . the result, all too often, is catastrophically maladjusted children.”
Id.
In this case, Child was removed from Mother’s custody when he was
three days old, and there is no testimonial evidence that a parent-child bond
exists between them. Therefore, it was reasonable for the court to infer that
no such bond exists. See In re K.Z.S., supra. As such, we discern no
abuse of discretion by the trial court in concluding that terminating Mother’s
parental rights will serve Child’s developmental, physical, and emotional
needs and welfare pursuant to Section 2511(b). See In re B.,N.M., supra
at 856 (stating that “a parent’s basic constitutional right to the custody and
rearing of his child is converted, upon the failure to fulfill his or her parental
duties, to the child’s right to have proper parenting and fulfillment of his or
her potential in a permanent, healthy, safe environment”).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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