J-S28009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF S.N.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.M., BIOLOGICAL :
MOTHER :
:
:
:
: No. 940 WDA 2016
Appeal from the Order Entered May 23, 2016
In the Court of Common Pleas of Warren County
Orphans’ Court at No(s): A.N. No. 2 of 2016
BEFORE: OLSON, MOULTON, and STRASSBURGER*, JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 12, 2017
N.M. (“Mother”) appeals from the decree dated and entered on May
23, 2016, granting the petition filed by the Warren County Children and
Youth Social Services Agency (“CYS” or the “Agency”), and involuntarily
terminating her parental rights to her female, special needs child, S.N.W.,
born in March of 2000 (“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), and (b).1 Mother’s counsel, Attorney Nathaniel J.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Mother named K.M. as Child’s father. He is believed to be deceased, and
to have lived in North Carolina prior to his death. See N.T., 5/23/16, at 27,
42, 60-63, 82. In the same termination decree entered on May 23, 2016,
the trial court also terminated the parental rights of K.M./unnamed, putative
father. On January 18, 2017, the counsel appointed to represent
K.M./unnamed, putative father, Attorney Michelle M. Alaskey, filed with this
Court a motion to withdraw as counsel. She asserted that K.M. is either
deceased or was a fictitious name, and that a diligent search by both
(Footnote Continued Next Page)
J-S28009-17
Schmidt, (“Counsel”), filed with this Court a petition for leave to withdraw as
counsel and a brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). We affirm, and grant Counsel’s petition to withdraw and
supplemental petition to withdraw, as well as the motion to withdraw as
counsel filed by the counsel appointed to represent K.M./unnamed, putative
father.
On March 22, 2016, CYS filed the petition seeking to involuntarily
terminate the parental rights of Mother and K.M./unnamed, putative father.
The trial court held an evidentiary hearing on May 23, 2016. Neither Mother
nor K.M./unnamed, putative father appeared. The counsel appointed to
represent Mother, and the counsel appointed to represent K.M./unnamed
putative father were present, and represented their clients’ interests.
Mother’s counsel stated that Mother was living in Kulpmont, North Carolina,
where she had previously resided. N.T., 5/23/16, at 4.
CYS first presented the testimony of Child’s foster mother, B.S.,
(“Foster Mother”). Id. at 5. Foster Mother testified that Child came to live
with her and her husband, W.S. (collectively, “Foster Parents”), and their
two children on April 11, 2015. Id. at 5-6. Foster Mother also testified that,
when Child came to live with them, Child had a developmental age of 18
_______________________
(Footnote Continued)
Attorney Alaskey and CYS did not produce any individual for Attorney
Alaskey to represent in the termination proceedings. We, hereby, grant
Attorney Alaskey’s motion to withdraw as counsel.
-2-
J-S28009-17
months, and, at the hearing, Child had a developmental age of 24 months.
Id. at 6-7. Moreover, Foster Mother testified that Child had grown in height,
weight, and size since she had come to live with the Foster Parents. Id. at
10-12. Child has to wear a diaper and to be bathed, and can only speak ten
words that do not communicate her medical condition to Foster Mother. Id.
at 14. Child calls Foster Mother “Mom” approximately twice a week. Id. at
35. Foster Parents are not a pre-adoptive resource for Child. Id. at 37-38.
There is no time-frame for how long Child will reside with the Foster Parents
in foster care. Id. at 45-46.
Next, CYS presented the testimony of its caseworker, Amanda Bindics,
who had been working with Child since September 8, 2015. Id. at 47. In
her testimony, Ms. Bindics explained that Child has cerebral palsy and
pyruvate dehydrogenase complex deficiency. Id. at 48. Ms. Bindics also
testified that Child has no family available with whom Child may reside in
long-term placement. Id. at 70. Moreover, Ms. Bindics testified that Mother
is not a placement option for Child. Id. She stated that Child would not be
affected if Mother’s parental rights were terminated, and that Child would be
unaware of such a termination. Id. Additionally, Ms. Bindics testified that
Foster Parents are providing for all of Child’s physical, emotional and
developmental needs. Id. at 71.
Based on this testimony and CYS exhibits 1-21, which the trial court
admitted into evidence, the trial court made its findings of fact at the
-3-
J-S28009-17
conclusion of the hearing on May 23, 2016, and entered its termination
decree on that same date.
Mother timely filed a notice of appeal and concise statement pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b) on June 22, 2016. Counsel filed a petition
for leave to withdraw as counsel for Mother on December 28, 2016, an
Anders brief on December 27, 2016, and a supplemental petition for leave
to withdraw on January 19, 2017.
In her Anders brief, Mother raises one issue challenging the
sufficiency of the evidence to support the termination of her parental rights
to Child. See Anders Brief; Mother’s Concise Statement at 1.2 In its
opinion entered on June 24, 2016, the trial court adopted the reasons for the
termination decree thoroughly stated at the conclusion of the hearing on
May 23, 2016.
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he or she must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record . . ., counsel
has determined the appeal would be frivolous;
____________________________________________
2
In her concise statement that accompanied her notice of appeal, Mother
stated her issue somewhat differently from her Anders brief, but we find
that Mother adequately preserved her issue for our review. Cf. Krebs v.
United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both his concise statement of errors complained of on appeal and the
Statement of Questions Involved in his brief on appeal).
-4-
J-S28009-17
(2) file a brief referring to anything that might arguably support
the appeal, but which does not resemble a “no-merit” letter or
amicus curiae brief; and
(3) furnish a copy of the brief to [the client] and advise him of
his right to retain new counsel, proceed pro se, or raise any
additional points he deems worthy of the court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
In In re V.E., 611 A.2d 1267, 1274-1275 (Pa. Super. 1992), this
Court extended the Anders principles to appeals involving the termination of
parental rights. “When considering an Anders brief, this Court may not
review the merits of the underlying issues until we address counsel’s request
to withdraw.” In re S.M.B., 856 A.2d at 1237.
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our
Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. “After an appellate court receives an Anders
brief and is satisfied that counsel has complied with the aforementioned
-5-
J-S28009-17
requirements, the Court then must undertake an independent examination
of the record to determine whether the appeal is wholly frivolous.” In re
S.M.B., 856 A.2d at 1237.
With respect to the third requirement of Anders, that counsel inform
the client of his or her rights in light of counsel’s withdrawal, this Court has
held that counsel must “attach to their petition to withdraw a copy of the
letter sent to their client advising him or her of their rights.”
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Here, in his petition for leave to withdraw filed on December 28, 2016,
with this Court, counsel complied with each of the requirements of Anders.
Counsel indicates that he conscientiously examined the record and
determined that an appeal would be frivolous. Further, counsel’s Anders
brief comports with the requirements set forth by the Supreme Court of
Pennsylvania in Santiago. Finally, attached to his supplemental petition for
leave to withdraw, filed on January 19, 2017, is a copy of his letter to
Mother, dated January 17, 2017. In compliance with Millisock, the letter
advised Mother of her right to proceed pro se or retain alternate counsel and
file additional claims, and stated counsel’s intention to seek permission to
withdraw. Accordingly, counsel has complied with the procedural
-6-
J-S28009-17
requirements for withdrawing from representation, and we will proceed with
our own independent review.3
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 9 A.3d 1179,
1190 (Pa. 2010). If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa.
2011) (plurality opinion)]. As has been often stated, an abuse of
discretion does not result merely because the reviewing court
might have reached a different conclusion. Id.; see also
Samuel Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51
(Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying
an abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
____________________________________________
3
In its Rule 1925(a) opinion, the trial court did not address Mother’s issue,
finding the concise statement too vague for review. This Court has stated,
however, “[o]nce counsel has satisfied the above requirements [for a motion
to withdraw and Anders brief], it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(following Goodwin). Thus, we decline to find that the concise statement is
too vague for our review. After conducting an independent review, we also
find that this appeal is wholly frivolous.
-7-
J-S28009-17
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[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., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
In the Anders brief, Mother contends that the trial court abused its
discretion or erred as a matter of law in concluding that the evidence was
sufficient to support the involuntary termination of her parental rights under
section 2511(a)(1), (2), (5), and (b). Mother suggests that CYS failed to
provide reasonable efforts to reunify her with Child.
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
-8-
J-S28009-17
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). The trial court terminated Mother’s parental rights under sections
2511(a)(1), (2), (5), and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(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,
physical and emotional needs and welfare of the child. The
rights of a parent shall not be terminated solely on the basis of
-9-
J-S28009-17
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.
With respect to subsection 2511(a)(1), our Supreme Court has held as
follows.
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).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).
Further, this Court has stated:
the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations
omitted).
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
- 10 -
J-S28009-17
(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 causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. 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), 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).
Regarding section 2511(a)(5), we have stated:
we . . . review the record to determine whether [a
child has] been removed from [the parent] for six
months and whether [the parent] can remedy the
conditions leading to the removal of [the child].
See, In the Interest of Lilley, 719 A.2d 327, 334
(Pa. Super. 1998) (the child has been removed from
the parents by the court and the conditions which led
to placement of the child continue to exist and have
not been remedied within a reasonable time and
termination of parental rights would best serve the
needs and welfare of the child). We also note that in
considering the importance of stability to a child’s
welfare, the reasons why the child has been with the
third party for so long must be taken into account.
In Re: Adoption of Steven S., 612 A.2d 465, 471
(Pa. Super. 1992), appeal denied, 625 A.2d 1194
(Pa. 1993).
In re Adoption of T.B.B., 835 A.2d 387, 395 (Pa. Super. 2003).
This Court has stated that the focus in terminating parental rights
under section 2511(a) is on the parent, but it is on the child pursuant to
- 11 -
J-S28009-17
section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super 2008) (en banc). In reviewing the evidence in support of termination
under section 2511(b), our Supreme Court recently stated as follows.
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). 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 K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
At the conclusion of the termination hearing, the trial court stated the
following:
THE COURT: All right.
I’ll start with the putative father and/or [K.M.]. Obviously the
father of [Child] has never been in the picture according to prior
dependency orders. [Mother] indicated that the father was
named [K.M.] and that he passed away shortly after [Child’s]
birth. [Child] is 16 now and whether it was [K.M.] or anybody
else, no father has played any part in her life. So clearly the
[A]gency has met the grounds under 2511(a) (1) and (2), that
there’s either an incapacity, abuse, neglect or refusal of the
biological father to provide any care to perform any parental
duties.
As far as subsection (b) goes there’s no dad, no bond, no
concerns for the Court other than that [Child’s] best interests
will be met if the rights of any biological father are terminated.
- 12 -
J-S28009-17
With respect to [Mother], the [A]gency set forth in its petition
three subsections under 2511. First, that the parent by conduct
continuing for a period of at least six months immediately
proceeding [sic] the filing of the petition either served a subtle
purpose of relinquishing parental claim to a child or has refused
or failed to perform parental duties, and in this case it’s both.
The petition was filed on March 22nd so we go back to
September 22nd of last year thereabouts. [Mother’s] supervised
visits had already terminated two months earlier in July. At
best, a chance encounter at Walmart after the six-month clock is
ticking, a couple of phone calls towards the middle or end of
March, kind of a last ditch effort by [Mother] to re-assert herself,
ended up with the usual from her, talking a good game but
never following through with it.
The [A]gency frankly went over and above even attempting to
schedule supervised visits so that a gift could be given, because
by that time I’d ordered that the [A]gency didn’t have to make
any continued reunification efforts. Once again, she didn’t follow
through. Her reasons are incredible. As I’ve indicated in past
orders, she has an excuse for just about everything where it
came to stepping up to the plate for [Child].
So in the six months immediately filing the petition she
performed no parental duties and her actions clearly
demonstrate a [settled] purpose of relinquishing her parental
claim. She actually was in town for part of that and still couldn’t
find the energy to schedule contact with [Child].
Under subsection (2), the [A]gency’s burden is to show that the
repeated and continued incapacity, abuse, neglect or refusal of
the mother has caused [Child] to be without essential parental
care, control or subsistence necessary for her physical or mental
well[-]being, and the conditions and causes of that incapacity,
abuse, neglect or refusal cannot or will not be remedied by the
parent.
As of placement last April, it’s quite clear that [Mother] was
neglecting [Child] in just about every facet of her life. Starving
her on weekends, having her stay at hospitals after her
discharges because of whatever personal issues she was having,
not following up on specialized medical appointments, not
participating at school, not changing [Child’s] diaper before
- 13 -
J-S28009-17
school, the school[‘]s having to shower [Child], change her
because [Mother] was neglectful in those regards.
[Child’s] growth really is obscene when you see the progress she
made under the roof of people who give a darn, gained weight
consistently, thrived in every aspect of her being, verbally,
physically, developmentally, didn’t miss 30 days of school that’s
for sure, and when she showed up she was healthy, happy,
ready to be educated.
And there’s absolutely nothing that’s occurred since placement
that would indicate [Mother] is in any better place to address
those [issues]. She’s been absent. Her supervised visits, 11 out
of 25, when they were in place dropped out in July ten months
ago, has had really essentially no ability to indicate that she
would be able to address those issues.
And I’m just not talking about from a financial aspect or housing,
that help is available. I’ve seen the [A]gency help a parent in
bad economic straits reunify with a child, it happens all the time
when the parent wants it to, when they’re willing to put the
child’s needs above their own, but nothing [Mother] has done
throughout indicates that's a priority for her.
So under 2511(a) (2) the [A]gency has met its burden of proof
by clear and convincing evidence again that those grounds exist.
And, finally, subsection (a)(5), [Child] was removed from the
care of [Mother] at least six months ago, it was in April of 2015,
so we’re talking about 13 months. The conditions that led to the
removal or placement of [Child] continue to exist. The parent
cannot or will not remedy those conditions within a reasonable
period of time and the services or assistance reasonably
available to [Mother] are not likely to remedy the conditions that
led to [Child’s] removal and best interests would -- and
termination of parental rights would serve [Child’s] best
interests.
Again, [Child’s] been in agency custody 13 months. There has
been no progress of any kind by [Mother] to alleviate the
circumstances that led to [Child’s] placement. The [A]gency has
gone once again over and above providing transportation,
holding her hand, trying to get her to medical appointments, IEP
meetings, scheduling supervised visits where transportation was
- 14 -
J-S28009-17
provided, really to start with an open door communication policy
in the foster home. [Mother] has done nothing. She’s had
services available and clearly termination of parental rights
would best serve [Child’s] needs.
And I’ll address that now with respect to 2511(b). Clearly
there’s not going to be any harm to [Child’s] developmental,
physical and emotional needs if [Mother’s] rights are terminated.
She won’t know it occurred and she never will. She recognizes
[Mother] just as another face at the beauty salon at Walmart.
Nothing more, nothing less. Recognizes her aunt or her friend
[K.] more than her biological mother and it’s to be expected. It
went from at the very beginning supervised visits, [Child]
demonstrating openly that she is excited to see [Mother] to what
happened last September at Walmart which was
essentially somebody at the mall coming up to sing.
The relationship between [Foster Mother] and [Child] obviously
indicates that she’s capable of forming strong attachments with
caregivers. For whatever reason, whatever occurred in the 15
years in [Mother’s] care didn’t result in the type of attachment
that [Child] wouldn’t completely forget about her after a half a
year, and again, I understand [Child’s] functional limitations, but
apparently it doesn’t prevent her from forming attachments and
keeping those attachments.
And, again, I’m really not giving any weight to [Mother’s]
inability to find a home, to work, to provide medical care,
clothing to the extent that they’re environmental factors because
that’s not really any part of the equation. It’s [Mother’s] resolve
or determination that it’s not worth the fight, not worth the
effort to cooperate with the [A]gency to take advantage of those
services.
So those are really side issues to the ultimate consideration and
that is [Mother] has given up unfortunately, and frankly, I
understand the nature of having a child with those type of
special needs, but she wasn’t coming anywhere near her
obligations, not when she’s starving [Child] on weekends, not
getting her to medical appointments, having her sit in a hospital
for inpatient care for days at a time, not showing up or not
indicating where she’s going to be at, not having the energy to
change a diaper in the morning. Those are the considerations
that I’m giving to subsection (b).
- 15 -
J-S28009-17
And I do need to put on the record, and it’s not meant to be
anything other than making the record complete, but I fully
understand that [Child’s] permanency will not be with the
[Foster Parents] and I’m certainly considering that. It would be
even more of a no-brainer if the [Foster Parents] planned on
adopting [Child]. They’re not, they’ve done their part that’s for
sure, and apparently they’re willing to continue to do their part,
and I have absolutely no question that the [A]gency, the [Foster
Parents] and the foster -- or, the adoptive home that’s located in
the future will all work together to make that final transition a
successful one for [Child].
Would it be easier if there wasn’t going to be one more
transition? Sure, but certainly a transition back to [Mother] isn’t
in [Child’s] best interest. There would be no reason, nothing of
record to indicate that I should try to keep that open as a
possibility, so there’s nothing there, no bond, no attachment, no
history of appropriate care, no cooperation with the [A]gency
during the placement period, just a horrible reunification with
[Child].
So I just want the record to make it clear that I understand that
[Foster Parents] aren’t the permanent home for [Child], but the
fact that she can remain there and [Foster Parents] and the
[A]gency will oversee her placement in an adoptive home
certainly is in her best interests under subsection (b).
So on that basis I will be entering the proposed decree of
termination with respect to [Mother], [K.M.] and unknown
putative father and that the [A]gency can continue with adoption
without any further notice to the biological parents.
N.T., 5/23/16, at 82-90.
While Mother suggests that the trial court abused its discretion and
erred as a matter of law in terminating her parental rights when CYS failed
to provide her with reasonable efforts to promote reunification between her
and Child prior to filing the termination petitions, our Supreme Court has
held that an agency’s failure to provide reasonable reunification services
- 16 -
J-S28009-17
does not preclude termination of parental rights. In the Interest of:
D.C.D., 105 A.3d 662, 675 (Pa. 2014). Thus, we find her argument lacks
merit.
After a careful review of the record in this matter, we find the record
supports the trial court’s factual findings, and the court’s legal conclusions
are not the result of an error of law or an abuse of discretion. In re
Adoption of S.P., 47 A.3d at 826-27. Accordingly, it was proper for the
trial court to find no bond exists such that Child would suffer permanent
emotional harm if Mother’s parental rights were terminated. In re K.Z.S.,
946 A.2d 753, 764 (Pa. Super. 2008). It is well settled that “we will not toll
the well-being and permanency of [a child] indefinitely.” In re Adoption of
C.L.G., 956 A.2d at 1007, citing In re Z.S.W., 946 A.2d 726, 732 (Pa.
Super. 2008) (noting 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.”). Also, there is no need to postpone termination until the
agency identifies an adoptive family. See In re T.S.M., 71 A.3d at
268-269.
As we find the trial court’s conclusions are supported by competent
evidence in the record, we affirm the termination of Mother’s parental rights
with regard to Child under section 2511(a)(1), (2), (5), and (b), on the basis
of the trial court’s statement on the record at the conclusion of the hearing
on May 23, 2016. See N.T., 5/23/16, at 82-90. We also grant counsel’s
- 17 -
J-S28009-17
petition and supplemental petition to withdraw as counsel for Mother, as well
as the motion to withdraw filed by the counsel appointed to represent K.M.
and any unnamed, putative father.
Decree affirmed. Petition and supplemental petition to withdraw filed
by Mother’s counsel granted. Motion to withdraw filed by K.M./unnamed,
putative father’s counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2017
- 18 -