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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: W.A.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.S., MOTHER :
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:
:
:
: No. 1170 WDA 2022
Appeal from the Decree Entered September 6, 2022
In the Court of Common Pleas of Jefferson County, Orphans' Court at
No(s): 23A-2022 O.C.
IN RE: J.L.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.S., MOTHER :
:
:
:
:
: No. 1171 WDA 2022
Appeal from the Decree Entered September 6, 2022
In the Court of Common Pleas of Jefferson County, Orphans' Court at
No(s): No. 22A-2022-O.C.
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED: MARCH 6, 2023
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A.S. (Mother) appeals1 from the decrees,2 entered in the Court of
Common Pleas of Jefferson County, Orphans’ Court Division, involuntarily
terminating her parental rights to her minor twin sons, W.A.S. and J.L.S.
(Children) (born Oct. 2020). Because Mother remains incapable of
successfully parenting Children and providing for their physical and mental
well-being, we affirm.
Jefferson County Children and Youth Services (CYS) caseworker,
Rebecca Sallack, received a report that Mother presented to the emergency
room at the Punxsutawney Hospital with then-three-and-a-half-month-old
J.L.S., who had bruises on his arm and leg.3 While Mother at first denied
hurting J.L.S.,4 she ultimately admitted to having caused some of the bruising
by squeezing J.L.S.’s arm and leg.5 Children were living with Mother at their
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1 Mother has complied with the dictates of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), by filing a separate notice of appeal for each Orphans’
Court docket number. See In re: M.P., 204 A.3d 976 (Pa. Super. 2019)
(applying Walker holding in termination of parental rights context).
2 On October 28, 2022, our Court sua sponte consolidated these appeals as
they involve related parties and issues. See Pa.R.A.P. 513.
3Police found a wood clamp in maternal grandparents’ home that had a shape
which was consistent with the shape and size of the bruise on J.L.S.’s arm.
N.T. Termination Hearing, 8/30/22, at 60.
4 Mother, in fact, first accused her father of hurting J.L.S. Id. at 58.
5Mother was immediately arrested and incarcerated. On August 30, 2022,
Mother entered the ARD program on third-degree felony charges after
entering a guilty plea for endangering the welfare of a child, simple assault,
and harassment. Mother was still on probation at the time of the termination
hearing.
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maternal grandparents’ home at the time of the incident. Maternal
grandparents’ home was determined to not be a safe environment for Children
and an emergency protective custody order was entered. W.A.S. and J.L.S.
were immediately removed from the home and placed in kinship care.
Children were adjudicated dependent on February 23, 2021. On April
13, 2021, Children were placed in a pre-adoptive foster home, where they
remain to date. CYS established the following family service plan for Mother:
undergo drug and alcohol evaluation and follow all recommendations; obtain
a psychological evaluation6 and follow recommendations; participate in anger
management classes; notify CYS within 7 days of any address or telephone
changes; participate in and complete nurturing parent classes; engage in
supervised visits with Children, confirm attendance at visits at least 24-hours
in advance; and provide diapers, wipes, formula, and baby food for visits. Id.
at 6.7 Child permanency plans, which were instituted in March 2012 and
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6 Mother presented with a history of bipolar disorder, was medicated for the
condition, and ordered to continue therapy to help treat her depressive mood.
7 The service plan was revised in September 2021 after Mother had completed
her drug and alcohol evaluation, anger management class, nurturing parent
class, and had obtained a psychological evaluation. Id. at 7. The new plan
recommended that Mother continue with mental health counseling and follow
recommendations, take all medications as prescribed, obtain a court-ordered
psychiatric evaluation, openly communicate with CYS with regard to any
“concerns, issues, and any changes,” transfer parenting skills learned in the
nurturing parent classes to visits with Children, obtain stable housing, and
keep CYS caseworker informed of any new addresses. Id. at 7-8.
(Footnote Continued Next Page)
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revised throughout October 2021, were implemented and included:
participation in early head start programs; weekly two-hour visits with Mother
at CYS; age-appropriate stimulation and activities for Children; early
intervention evaluations; and participation in physical therapy. Id. at 10-13.
Permanency review hearings were held in May and August 2021 and
February and May 2022. At the 2021 review hearings, Mother’s compliance
with her family service plan was substantial/moderate and her progress was
considered minimal/moderate, respectively. N.T. Termination Hearing,
8/30/22, at 4. CYS had a bonding assessment conducted of Mother and
Children in June 2021, which indicated that “Mother appeared to be struggling
with balancing her energies and multitasking between the two needy
children[,] . . . [that Mother] would hold the[] boys facing them away [from
her during visits,]. . . [that Mother] wouldn’t make frequent physical contact
with [Children,] . . . and that [C]hildren did not yearn after [Mother] when it
was time for [her] to leave [visits].” Id. at 27. At the 2022 review hearings,
Mother’s compliance was noted as moderate and her progress minimal. Id.
at 4-5. In May 2022, visitation ceased and the permanency goal was changed
from reunification to adoption. On July 8, 2022, CYS filed petitions to
involuntarily terminate Mother’s rights to Children.
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The service plan was again revised in April 2022 to add the following: notify
CYS within 7 days of any employment or employment schedule change and a
weekly ten-minute phone call with Children. Id. at 9-10.
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On August 30, 2022, the court held a termination hearing that
incorporated the record in the underlying dependency proceeding. At the time
of the termination hearing, Children had been in placement for 18 months.
CYS caseworker Sallack and Erin Landeni-Rogan, Father’s therapist through
the Erie County Probation Department, testified at the hearing.8 On
September 6, 2022, the trial court granted CYS’ petition and terminated
Mother’s parental rights9 pursuant to sections 2511(a)(2), (5), (8), and (b) of
the Adoption Act.10 Mother filed a timely notice of appeal and court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On
appeal, Mother presents the following issues for our review:
(1) Whether the trial court made an error of law or abused its
discretion in terminating [Mother’s] parental rights under 23
Pa.C.S.A. § 2511(a)(2)[.]
(2) Whether the trial court made an error of law or abused its
discretion in terminating [Mother’s] parental rights under 23
Pa.C.S.A. § 2511(a)(5)[.]
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8 Children were represented by guardian ad litem, Greg Sobol, Esquire, and
attorney, Danielle Melillo, Esquire, at the termination hearing. See 23
Pa.C.S.A. § 2313(a) (children have statutory right to counsel in contested
involuntary termination proceedings) and In re K.R., 200 A.3d 969 (Pa.
Super. 2018) (en banc (same)
9 The trial court also involuntarily terminated the parental rights to Children’s
biological father, A.G, who has also filed an appeal. See In Re: W.A.S. &
J.L.S., Nos. 1172 & 1173 WDA 2022. A.G.’s appeal will be addressed in a
separate decision.
10 23 Pa.C.S.A. §§ 2101-2938.
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(3) Whether the trial court made an error of law or abused its
discretion in terminating [Mother’s] parental rights under 23
Pa.C.S.A. § 2511(a)(8)[.]
(4) Whether the trial court made an error of law or abused its
discretion in terminating [Mother’s] parental rights under 23
Pa.C.S.A. § 2511(b)[.]
Mother’s Brief, at 6.
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 [which] 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, 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 [s]ection 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 [s]ection 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).
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Instantly, the trial court terminated Mother’s parental rights pursuant to
sections 2511(a)(2),11 (5), (8), & (b).12 We need only agree with the Orphans’
Court as to any one subsection of section 2511(a), as well as section 2511(b),
in order to affirm its termination decree. In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc).
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11 Subsection 2511(a)(2) states:
(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.
23 Pa.C.S.A. § 2511(a)(2) (emphasis added).
12 Subsection 2511(b) states:
(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) ... (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(b).
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Mother contends that there is no permanent incapacity that would cause
Children to be without essential care and control to justify terminating her
parental rights under subsection 2511(a)(2). Specifically, Mother claims that:
she was always prepared and “did a majority of the work” for Children at
visits; she successfully completed a parenting program in September 2021;
she was never offered “a refresher course or a different experiential course
tailored to . . . parenting twin boys;” and, her parental deficiency or incapacity
has “not been proven to be so permanent as to warrant termination of her
rights.” Mother’s Brief, at 9-10.
To satisfy the requirements of subsection 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; (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) (emphasis added). The grounds for
termination of parental rights under subsection 2511(a)(2), due to parental
incapacity that cannot be remedied, are not limited to affirmative misconduct;
the grounds may also include acts of refusal, as well as incapacity to perform
parental duties. In the Interest of A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002).
Instantly, the trial court concluded that:
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[w]hile Mother [] began the dependency process, [she] lacked
many of the most basic parenting skills, and neither time nor
education has changed that. . . . [She was] unable to transfer
book knowledge to real life[.] After more than a year of
supervised visits, [she] still could not anticipate the [Children’s]
needs[, she] could not recognize signs of hunger and satiety[,
she] had to be continually reminded to check diapers[,] and [she]
failed to appreciate that toddlers playing on above-ground
surfaces needed to be monitored or redirected. [She] further
failed to comprehend the importance of staying actively engaged
with [C]hildren when their time together was so limited,
frequently focusing their attention on things that interested [her]
rather than on the twins.
Trial Court Opinion, 9/6/22, at 2 (emphasis in original). The record supports
the trial court’s conclusions and, therefore, supports termination under
subsection 2511(a)(2).
Although Mother completed parenting classes as part of her family
service plan, CYS caseworker Sallack testified Mother did not “demonstrate”
the skills that she had learned in those classes during visits with Children.
See N.T. Termination Hearing, 8/30/22, at 14, 34, 41 (CYS caseworker
testifying Mother unable to “transfer” learning skills to nurturing Children); id.
at 22, 35, (CYS caseworker had to tell Parents “every step of the way” what
to do for Children at visits). Moreover, Sallack testified that because Mother
completed the parenting course casework, she did not need to “retake” any
parenting classes as a “refresher.”
Simply put, in the 18 months since Children have been removed from
Mother’s care, Mother has been incapable during visits of properly supervising,
caring for, and tending to the needs of Children without the constant
intervention and instruction of CYS caseworkers. See 23 Pa.C.S.A. §
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2511(a)(2) (“the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied”); see also In re M.E.P., supra at
1272. In fact, Mother’s visits have never progressed beyond supervised due
to safety concerns. See N.T. Termination Hearing, 8/30/22, at 66 (CYS never
felt comfortable lessening visit restrictions based on safety concerns posed to
Children); id. 65 (Caseworker Sallack testifying she would not be comfortable
with Mother being with Children unsupervised or confident that Children would
be safe alone with Mother); id. at 14-15 (Caseworker Sallack testifying Mother
did not know when Children needed diaper changes or feedings during visits).
This case is much more than an example of “gaps” in Mother’s parenting
of Children as Mother’s attorney would have us believe. Id. at 78. Mother’s
admitted criminal acts inflicted on J.L.S. led to Children’s removal from her
care and, even with consistent “hands-on” parenting instruction for over one
year, Mother has been unable to prove that she can put those lessons into
practice and carry out parenting responsibilities. Without more, Children are
at risk physically and emotionally. Accordingly, Mother’s inability to utilize the
skills she learned during the parenting classes and apply them to parenting
Children justifies termination under subsection 2511(a)(2).
Mother next contends that the trial court abused its discretion
terminating her parental rights under subsection 2511(b) because the court
“wrongfully concluded that there were not sufficient bonds worth preserving
between Mother and [C]hildren, by failing to not only evaluate the existing
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bonds, but also by failing to adequately weight the effects of their severance.”
Mother’s Brief, at 13. We disagree.
[Subs]ection 2511(b) does not explicitly require a bonding
analysis and the term “bond” is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. 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.
[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 J.N.M., 177 A.3d 937, 943-44 (Pa. Super. 2018) (citation omitted).
Here, CYS did have a bonding assessment conducted of Mother and
Children in June 2021. CYS caseworker Sallack testified that the doctor who
performed the assessment was most concerned with “the observed poverty of
emotional interaction between [Mother] and her two sons.” N.T. Termination
Hearing, 8/30/22, at 28. Moreover, the assessor noted that “[a]t the current
time, [Children] do not appear to have either a strong or secure emotional
bond with [Mother].” Id.
CYS caseworker Sallack testified that after participating in Mother’s
visits with Children for a year and a half, she never observed a secure
emotional bond between Mother and Children. Id. Rather, the caseworker
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noted that while Children were “friendly” and “familiar” with Mother during
visits, when Children would return to their foster home, the Children would be
“so excited” to see their foster parents, “run[ning,] giggling[,] and laughing.”
Id. CYS caseworker Sallack further testified that Children “appear very
bonded” with foster parents and the entire foster family, that Children “are
starting to say [and refer to foster parents as] dadda and mama,” and that
foster parents are providing for Children’s needs. Id. at 28-29.
Here, the record supports the conclusion that Children do not have an
established bond with Mother. Instead, the evidence demonstrates that
Children have a parent-child bond with their foster parents, who are an
adoptive resource. See Trial Court Opinion, 9/6/22, at 3 (“The [foster
parents] are the people they love, the people they greet with excitement, and
the people with whom they have developed family-like bonds.”); see also In
re J.N.M., supra. Accordingly, we conclude that the trial court did not abuse
its discretion in determining that termination of Mother’s parental rights would
best serve the developmental, physical, and emotional needs and welfare of
Children. See 23 Pa.C.S.A. § 2511(b).
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2023
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