J-S13033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.J. A/K/A S.M., IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
APPEAL OF: J.M., MOTHER
No. 3148 EDA 2016
Appeal from the Order Entered September 2, 2016
in the Court of Common Pleas of Monroe County Orphans’ Court
at No(s): 30 O.C.A.2016
BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 20, 2017
J.M. (“Mother”) appeals from the order of the Court of Common Pleas
of Monroe County that involuntarily terminated her parental rights to her
daughter, S.J. a/k/a S.M. (“Child”), born in December 2013.1 We affirm.
We adopt the trial court’s recitation of the factual and procedural
history of this case, which the testimonial evidence supports. See Trial Ct.
Op., 11/8/16, at 1-8. On July 28, 2016, Monroe County Children and Youth
Services (“CYS”) filed a petition for the involuntary termination of Mother’s
parental rights to Child pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (8), and
(b). A hearing occurred on September 1, 2016, during which CYS presented
*
Former Justice specially assigned to the Superior Court.
1
By order dated October 28, 2015, the trial court involuntarily terminated
the parental rights of Child’s father, K.J. Trial Ct. Op., 11/8/16, at 5. K.J. is
not a party to the instant appeal.
J-S13033-17
the testimony of its caseworker, Jennifer Payne. Mother was present for the
hearing and represented by counsel, but she presented no evidence.
On September 2, 2016, the trial court 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 November 8, 2016.
On appeal, Mother presents the following issues for our review:
1. Did the [trial court] err and/or abuse its discretion in
concluding that clear and convincing evidence was presented
that [Mother] either evidenced a settled purpose of relinquishing
parental claim to a child, or refused or failed to perform parental
duties?
2. Did the [trial court] err and/or abuse its discretion in finding
that clear and convincing evidence was presented that
[Mother]’s repeated and continuing incapacity, abuse, neglect or
refusal caused the child to be without [essential] parental care,
control or subsistence necessary for the child’s physical and
mental well-being, and in finding that the conditions and the
cause of the inability, abuse, neglect or refusal had not been
remedied by the parent when [Mother] had remedied most of
the conditions and causes of the alleged inability, neglect or
refusal to parent?
3. Did the [trial court] err and/or abuse its discretion in finding
that clear and convincing evidence had been presented that the
conditions which led to the removal or placement of the child [ ]
continue to exist?
4. Did the [trial c]ourt err and/or abuse its discretion in finding
that clear and convincing evidence had been presented that
termination of parental rights would best serve the needs and
welfare of the child?
-2-
J-S13033-17
5. Did the [trial court] err and/or abuse its discretion in
concluding that clear and convincing evidence was presented
that [Mother]’s parental rights would serve the developmental,
physical and emotional needs and welfare of the child?
Mother’s Brief at 7.
We review Mother’s appeal according to the following standard:
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. §§ 2101-2938, which requires a bifurcated
analysis. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations
omitted).
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
-3-
J-S13033-17
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.
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. In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we
conclude that the trial court properly terminated Mother’s parental rights
pursuant to Section 2511(a)(8) and (b), which provides 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:
***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the
date of removal or placement, the conditions which led to
the removal or placement of the child continue to exist
and termination of 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, 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.
-4-
J-S13033-17
23 Pa.C.S. § 2511(a)(8), (b).
The following factors must be demonstrated when seeking termination
under Section 2511(a)(8):
(1) The child has been removed from parental care for 12
months or more from the date of removal; (2) the conditions
which led to the removal or placement of the child continue to
exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
“Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.” In
re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the twelve-month
period has been established, the court must next determine whether the
conditions that led to the child’s removal continue to exist, despite the
reasonable good faith efforts of the agency supplied over a realistic period.
Id. “[T]he relevant inquiry in this regard is whether the conditions that led
to removal have been remedied and thus whether reunification of parent and
child is imminent at the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa.
Super. 2009) (citation omitted).
With respect to the “needs and welfare” analysis pertinent to
Section 2511(a)(8) and (b), we have observed:
[I]nitially, the focus in terminating parental rights is on the
parent, under Section 2511(a), whereas the focus in
Section 2511(b) is on the child. However, Section 2511(a)(8)
explicitly requires an evaluation of the “needs and welfare of the
child” prior to proceeding to Section 2511(b), which focuses on
-5-
J-S13033-17
the “developmental, physical and emotional needs and welfare of
the child.” Thus, the analysis under Section 2511(a)(8) accounts
for the needs of the child in addition to the behavior of the
parent. Moreover, only if a court determines that the parent’s
conduct warrants termination of his or her parental rights,
pursuant to Section 2511(a), does a 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.” Accordingly, while both
Section 2511(a)(8) and Section 2511(b) direct us to evaluate
the “needs and welfare of the child,” we are required to resolve
the analysis relative to Section 2511(a)(8), prior to addressing
the “needs and welfare” of [the child], as proscribed by
Section 2511(b); as such, they are distinct in that we must
address Section 2511(a) before reaching Section 2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1008–1009 (Pa. Super. 2008) (en
banc) (citations omitted).
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
“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, 762-63 (Pa. Super. 2008) (citation omitted).
-6-
J-S13033-17
Mother, in her third and fourth issues,2 claims that CYS did not meet
its burden of proof under Section 2511(a)(8). Specifically, Mother argues
that, “the condition which led to [Child’s] dependency, [her] alleged drug
use, does not continue to exist.”3 Mother’s Brief at 19. In addition, Mother
asserts that she “maintains a bond with her child.” Id. at 20. She asserts
that, “[u]ntil it is determined how long Mother will be incarcerated, and
given her past ability to achieve her necessary goals[,] it is too soon to
determine that [Child’s] best interest[s] are served by terminating Mother’s
parental rights.” Id. We disagree.
There is no dispute that Child was born addicted to cocaine and
opiates and placed in emergency protective custody immediately after birth.
2
Mother’s first two arguments focus on separate subsections of Section
2511(a). See In re B.L.W., 843 A.2d at 384.
3
In her brief, Mother combines her arguments regarding Child’s “needs and
welfare” pursuant to Section 2511(a)(8) and (b). Nevertheless, we consider
arguments separately. See In re Adoption of C.L.G., 956 A.2d at 1009
(“[W]hile both Section 2511(a)(8) and Section 2511(b) direct us to evaluate
the ‘needs and welfare of the child,’ we are required to resolve the analysis
relative to Section 2511(a)(8), prior to addressing the ‘needs and welfare’ of
[the child], as proscribed by Section 2511(b). . .”).
Moreover, Mother cites Section 2511(a)(5) in arguing that CYS failed
to prove that the conditions which led to the removal or placement of Child
continue to exist. See Mother’s Brief at 19. Because the trial court did not
terminate Mother’s parental rights pursuant to Section 2511(a)(5), Mother’s
citation is erroneous. However, we recognize that termination under both
Section 2511(a)(5) and (8) requires evidence that the conditions which led
to the child’s removal or placement continue to exist, and, therefore, we
consider her argument.
-7-
J-S13033-17
Trial Ct. Op. at 2; N.T., 9/1/16, at 6. Mother continued to test positive for
illegal substances and alcohol until her incarceration on May 13, 2014. 4 Trial
Ct. Op. at 3; N.T. at 9. Mother was released from prison on August 11,
2014, but she was arrested and incarcerated again on April 7, 2015, “for
possession with intent to deliver heroin and crack cocaine after two drug
buys were conducted at her home.” Trial Ct. Op. at 4; N.T. at 18. Mother
was released from prison on October 20, 2015.
Thereafter, on January 11, 2016, Mother’s probation officer notified
CYS that Mother tested positive for cocaine, and that there was a warrant
issued for her arrest. Trial Ct. Op. at 7; N.T. at 22-23. The trial court
further noted “Mother absconded until she was arrested again for Possession
with Intent to Deliver in July of 2016.” Trial Ct. Op. at 7; N.T. at 23. At the
time of the subject proceedings, Mother was in prison and requesting to
plead to the charges with immediate sentencing. See Trial Ct. Op. at 7;
N.T. at 29.
Based on these findings by the trial court we discern no abuse of
discretion by the court in concluding that CYS proved by clear and
convincing evidence that the conditions that led to Child’s placement,
4
This incarceration resulted from Mother’s arrest in September of 2013, two
months before Child’s birth, for, “among other things, possession of heroin
and endangering the welfare of children, and events that led to revocation of
an ARD [Accelerated Rehabilitative Disposition] that Mother had received for
a prior Driving under the Influence arrest.” Trial Ct. Op. at 2 (citations to
record omitted).
-8-
J-S13033-17
namely, Mother’s drug addiction, continue to exist. The court’s findings
were supported by the record and evince no manifest unreasonableness.
Similarly, the trial court’s findings that terminating Mother’s parental
rights would best serve the needs and welfare of Child under Section
2511(a)(8) were supported by the record and reveal no abuse of discretion.
The court found that, upon her release from prison on October 20, 2015,
Mother initially participated in weekly supervised visitation with Child. Trial
Ct. Op. at 7; N.T. at 22. However, Mother’s last visit with Child was on
December 29, 2015, and Mother was “on the run” from the warrant issued
for her arrest. Trial Ct. Op. at 7; N.T. at 22-23. By the time of the subject
proceedings, Child was more than two and one-half years old, and “Mother
had not seen or even attempted to visit [Child] in eight months. . . .” Trial
Ct. Op. at 7; See N.T. at 27. Further, Mother was incarcerated for the third
time in Child’s short life and awaiting sentencing. N.T. at 29. As such,
reunification between Mother and Child was not imminent at the time of the
hearing.
In addition, Ms. Payne testified that CYS transferred Child to a new
foster home, one where her half-sibling resides, on April 28, 2015, and that
this is a pre-adoptive resource. N.T. at 19, 32. The court heard evidence
that Child is thriving in the home, “is bonded with and shows love and
affection for everyone in the home.” Trial Ct. Op. at 7-8; N.T. at 31. Based
on the foregoing, we conclude that CYS met its burden of proof pursuant to
-9-
J-S13033-17
Section 2511(a)(8). As such, Mother’s third and fourth issues on appeal
warrant no relief.5
We next review Mother’s assertion that CYS failed to satisfy its burden
of proof pursuant to Section 2511(b). This Court has explained as follows.
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
The mere existence of an emotional bond does not preclude the
termination of parental rights. Rather, the orphans’ court must
examine the status of the bond to determine whether its
termination “would destroy an existing, necessary and beneficial
relationship.” As we explained in In re A.S., 11 A.3d 473, 483
(Pa. Super. 2010),
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have with
the foster parent. Additionally, this Court stated that the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (some citations omitted).
Moreover, our Supreme Court 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.” In re T.S.M., 71 A.3d at 268 (citation omitted). The T.S.M.
Court directed that, in weighing the bond considerations pursuant to Section
5
Based on this disposition, we need not review Mother’s first and second
issues on appeal relating to Section 2511(a)(1) and (2). See In re B.L.W.,
843 A.2d at 384.
- 10 -
J-S13033-17
2511(b), “courts must keep the ticking clock of childhood ever in mind.” Id.
at 269. The 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 fail . . . the result, all too often, is catastrophically
maladjusted children.” Id.
Instantly, there is no evidence of record that a parent-child bond
exists between Mother and Child. Therefore, it was reasonable for the trial
court to infer that none exists. See In re K.Z.S., 946 A.2d at 762-63.
Rather, the evidence demonstrates that Child is bonded to her foster
mother, who is a pre-adoptive resource. N.T., at 30-32.
Further, the trial court found as follows:
[Child] needs and deserves permanency, stability, love,
court, and parental care. Her needs have not been met by
Mother. Mother stopped visiting after December 2015, and
others, especially foster mother, have provided parenting
for [Child] while Mother did not. Moreover, nothing in the
record suggests that Mother will be able to meet [Child’s]
needs in the future, especially since as of the [subject
proceedings] Mother was awaiting sentencing on her latest
drug charge. The overwhelming evidence supports
termination of her parental rights on the grounds asserted
by CYS.
Trial Ct. Op. at 25. Upon careful review, we agree with the court. Indeed,
the testimonial evidence supports the court’s conclusion that involuntarily
terminating Mother’s parental rights serves the developmental, physical and
- 11 -
J-S13033-17
emotional needs and welfare of Child under Section 2511(b). 6 Accordingly,
we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
6
We further observe that the Guardian Ad Litem argued in support of the
involuntary termination of Mother’s parental rights during the subject
proceedings. See N.T. at 43-45.
- 12 -