In Re: Adopt. of L.A.B., a Minor

• Court: Superior Court of Pennsylvania
• Decided: January 24, 2024
• Docket: 1143 MDA 2023
• Status: Unpublished

Opinion

J-S45032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: ADOPTION OF L.A.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: V.O., MOTHER : : : : : No. 1143 MDA 2023

Appeal from the Decree Entered July 13, 2023 In the Court of Common Pleas of Cumberland County Orphans' Court at No(s): 028-Adopt-2023

IN RE: ADOPTION OF A.L.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: V.O., MOTHER : : : : : No. 1144 MDA 2023

Appeal from the Decree Entered July 13, 2023 In the Court of Common Pleas of Cumberland County Orphans' Court at No(s): 029-ADOPT-2023

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: JANUARY 24, 2024

Appellant, V.O. (“Mother”), appeals from the July 13, 2023 decrees filed

in the Cumberland County Court of Common Pleas, which granted the petitions

of A.A.B. (“Father”) and A.B. (“Stepmother”) (collectively, “Appellees”) and

involuntarily terminated her parental rights to her eight-year-old twin

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* Former Justice specially assigned to the Superior Court. J-S45032-23

daughters, L.A.B. and A.L.B. (collectively, “the Children”), pursuant to 23

Pa.C.S.A. § 2511(a)(1), (2), and (b). After careful review, we affirm.

We glean the relevant facts and procedural history of this case from the

certified record. The Children were born in August 2014. Although Mother and

Father were initially married, they separated sometime in late 2018 or early

2019. See N.T., 7/13/2023, at 46. Contemporaneously, Appellees met, began

living together, and married in 2021. See id. at 32. Since Stepmother started

cohabiting with Father in 2019, she has been intimately involved in the care

of the Children. See id.

The Children have been diagnosed with level three autism and

developmental delays. See id. at 6. Father described the Children’s autism as

“not the most severe but it’s not the easiest either.” Id. at 6. They are

“somewhat” verbal, and L.A.B. requires a tablet to help her communicate. Id.

Father stated that “[i]f you ask them, do you love [me], they will say, yes, I

love you. They say the small stuff. But if you ask them where [] they wanted

to go or what they wanted to do, no.” Id. at 6-7. Due to their diagnoses, the

Children attend “New Story,” a specialized school where the Children receive

speech therapy, behavioral therapy, and physical therapy to meet their

individual needs throughout the full twelve months of each year. See id. at 7,

12-14. Father emphasized that the Children “need a lot of consistency. [T]hey

have a routine they do every day and it helps. If you take a wrong road going

to school it throws their whole day off.” Id. at 13-14.

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In early 2019, CYS became involved with Mother because her oldest

children, who are not implicated by these proceedings, were not attending

school. See id. at 8-9, 47. Additionally, Father learned that the Children were

behind on vaccines. See id. at 12. As a result, Father was awarded physical

custody of the Children. See id. at 8-9, 47. For approximately two years

thereafter, Mother only saw the Children at Father’s discretion. See id. at 47.

In 2021, Mother initiated a custody action in the Cumberland County

Court of Common Pleas. See id. at 14, 47. Ultimately, the most recent custody

order also awarded Father sole legal custody of the Children, limited Mother

to supervised custody by Father, and required Mother to submit to drug tests

to participate in visits with the Children. See id.

Mother last physically interacted with the Children in April 2022. See id.

at 16, 54. Following a disagreement during her final visit, Father informed

Mother that he was no longer comfortable supervising the visits. See id. at

17. Father suggested utilizing alternative behavior consultants (“ABC”) as a

visitation supervisor. See id. Father further told Mother that he would reduce

the cost of her child support by the amount it cost to use ABC to ensure that

the visits would not come at an increased cost to Mother. See id. at 18.

However, as best we can discern, Mother never reached out to ABC to

schedule visits. See id. at 57-58. Further, Mother did not file any further

pleadings in the custody case. See id. at 19-20, 58-59. Accordingly, Mother’s

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only contact with the Children since April 2022 has been phone calls “most

nights.” See id. at 20.

On May 16, 2023, Appellees filed petitions for the involuntary

termination of Mother’s parental rights pursuant to Pa.C.S.A. § 2511(a)(1),

(2), and (b) along with separate petitions for adoption. By separate orders,

the orphans’ court appointed counsel for Mother and legal interest counsel for

the Children, who were eight years old at the time. On July 13, 2013, the

orphans’ court conducted a hearing at which all of the parties testified.

On July 13, 2023, the orphans’ court issued decrees involuntarily

terminating Mother’s parental rights. Mother timely filed a notice of appeal,

along with a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b). The orphans’ court filed a Rule 1925(a)

opinion on September 26, 2023.

On appeal, Mother presents the following issues for review:

1. Did the [orphans’ c]ourt err in finding that [Mother] had “by conduct continuing for a period of at least six months immediately preceding the filing of the petition . . . evidenced a settled purpose of relinquishing parental claim to a child or . . . refused or failed to perform parental duties”?

2. Did the orphans’ court err in finding that [Mother’s] parental rights should be terminated due to her “continued incapacity, abused, neglect or refusal” which caused the [Children] to “be without essential parental care, control or subsistence necessary for [their] physical or mental well-being”?

Mother’s Brief at 3.

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Our review of involuntary termination decrees “is limited to a

determination of whether the decree of the termination court is supported by

competent evidence.” In re Adoption of C.M., 255 A.3d 343, 358 (Pa. 2021).

When applying this standard, appellate courts must accept the orphans’

court’s findings of fact and credibility determinations if they are supported by

the record. In the Interest of S.K.L.R., 256 A.3d 1108, 1123 (Pa. 2021).

“Where the trial court’s factual findings are supported by the evidence, an

appellate court may not disturb the trial court’s ruling unless it has discerned

an error of law or abuse of discretion.” In re Adoption of L.A.K., 265 A.3d

580, 591 (Pa. 2021). An appellate court may reverse for an abuse of discretion

“only upon demonstration of manifest unreasonableness, partiality, prejudice,

bias, or ill-will.” Id.

Termination of parental rights is governed by Section 2511 of the

Adoption Act. If the orphans’ court determines the petitioner established

grounds for termination under subsection 2511(a) by clear and convincing

evidence, then the court must assess the petition under subsection 2511(b),

which focuses on the child’s needs and welfare. In re T.S.M., 71 A.3d 251,

267 (Pa. 2013).

In this case, the orphans’ court terminated Mother’s parental rights

pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2) 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:

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(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. ...

(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.

23 Pa.C.S.A. § 2511(a)(1)-(2), (b). We need only agree with the trial court as

to any one subsection of Section 2511(a), in addition to Section 2511(b), to

affirm an order terminating parental rights. In re D.L.B., 166 A.3d 322, 327

(Pa.Super. 2017) (citing In re M.M., 106 A.3d 114, 117 (Pa.Super. 2014)).

We will analyze the orphans’ court’s decision to terminate Mother’s

parental rights under Section 2511(a)(1) and (b). In order to establish

grounds for termination pursuant to Section 2511(a)(1) “[a] petitioner. . .

must demonstrate by competent, clear and convincing evidence, ‘[t]he parent

by conduct continuing for a period of at least six months immediately

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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.’” C.M., 255 A.3d at 363-64 (citation omitted) (footnote

omitted).

Our Supreme Court has held that:

our courts long have interpreted parental duties in relation to the needs of a child, such as love, protection, guidance and support. Parental duties are carried out through affirmative actions that develop and maintain the parent-child relationship. The roster of such positive actions undoubtedly includes communication and association. The performance of parental duties requires that a parent exert himself to take and maintain a place of importance in the child’s life.

L.A.K., 265 A.3d at 592 (internal citations and quotation marks omitted).

Furthermore, “[f]ortitude is required, as a parent must act with ‘reasonable

firmness’ to overcome obstacles that stand in the way of preserving a parent-

child relationship and may not wait for a more suitable time to perform

parental responsibilities.” Id. at 592 (citation omitted).

In assessing Section 2511(a)(1), the orphans’ court should consider the

entire history of the case and avoid applying the statutory six-month

requirement mechanically. See C.M., 255 A.3d at 364. However, the General

Assembly’s emphasis on the six months immediately preceding the filing of

the termination petition indicates this timeframe is the “most critical period

for evaluation” of a parent’s conduct. L.A.K., 265 A.3d at 592.

“[T]he question of whether a parent has failed or refused to perform

parental duties must be analyzed in relation to the particular circumstances of

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the case.” In re Burns, 379 A.2d 535, 540 (Pa. 1977). Thus, “even where

the evidence clearly establishes a parent has failed to perform affirmative

parental duties for a period in excess of six months …, the court ‘must examine

the individual circumstances and any explanation offered by the parent to

determine if that evidence, in light of the totality of circumstances, clearly

warrants permitting the involuntary termination [of parental rights].’” L.A.K.,

265 A.3d at 593 (citation omitted).

The totality of the circumstances includes consideration of the following:

“(1) the parent's explanation for his or her conduct; (2) the post-abandonment

contact between the parent and child, if any, including any efforts made by

the parent to reestablish contact with the child; and (3) the effect that

termination of parental rights would have on the child pursuant to Section

2511(b).” Id. As explained by our Supreme Court, “the purpose of this

analysis is to give effect to our mandate that courts avoid a mechanical

application of the law regarding the termination of parental rights. The law

must be applied with the purpose of serving needs and welfare of each

individual child in his or her particular circumstances.” Id.

With these principles of law in mind, we turn to Mother’s argument that

Appellees did not present clear and convincing evidence of Section 2511(a)(1)

because the record shows that she called the Children almost every night,

negotiated with Father regarding a new visitation schedule, and bought gifts

for the Children. Mother’s Brief at 9-10. Mother claims Appellees withheld the

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Children from her and did not afford her the opportunity to perform parental

duties because they did not invite her to medical appointments and

educational meetings regarding the Children. See id. at 12-14.

Mother’s argument that Appellees withheld the Children from her is not

supported by the certified record. Here, the record reveals that following

Mother’s last physical contact with the Children on April 28, 2022, Father did

not feel comfortable supervising her visits. See N.T. at 17. Instead of merely

withholding the Children, he suggested that future visitations occur through

ABC. See id. Understanding Mother’s financial difficulties, he also offered to

essentially absorb any additional expenses this arrangement might entail. See

id. Inexplicably, Mother never contacted ABC to facilitate these visits. See id.

at 57-58. Further, Appellees continued to permit phone calls between Mother

and the Children most nights. See id. at 20. Accordingly, Mother’s argument

that Appellees withheld the Children is without merit.

Mother contends that C.M. is controlling. In C.M., our Supreme Court

affirmed this Court’s decision to vacate the orphans’ court’s order terminating

the father’s parental rights. See C.M., 255 A.3d at 347. The Supreme Court

held, inter alia, that the termination of the father’s rights pursuant to Section

2511(a)(1) and (b) was not supported by competent evidence. See id. at 366.

In that case, the father “two months prior to the [] filing of the termination

petition, . . . initiated and actively pursued a complaint for custody” after the

mother refused him contact with the child. Id. at 368. The father testified that

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every time he attempted to contact the mother, she would either not answer,

or told him that he was not the biological father of the child. Id. at 350.

In citing C.M., Mother relies on the following excerpt: “when a custodial

parent’s conduct both causes the need for legal intervention and faults the

noncustodial parent for failing to take legal action more swiftly, [] we are loath

to require a parent’s prosecution of legal proceedings as a mechanism for

preserving parental rights.” Id. at 368 (citing Adoption of S.H., 383 A.2d

529, 533 (Pa. 1978) (“mere showing that [noncustodial parent] could

conceivably have pursued legal action more promptly cannot justify

termination”)) (additional citation omitted). Mother’s argument is flawed as

the facts presented in the case at bar are distinct from those in C.M. As related

supra, Appellees did not withhold the Children from Mother. Instead, she failed

to take “affirmative actions that develop and maintain the parent-child

relationship” with the Children. L.A.K., 265 A.3d at 592. Therefore, we

disagree with Mother that C.M. is applicable.

In concluding that Appellees satisfied Section 2511(a)(1), the court

explained:

At the hearing, no party disputed Mother had not had any in person visits between April 28, 2022 and the filing of the petition on May 16, 2023. Mother did not refute her failure to attend medical appointments or have any substantial level of involvement in the educational and developmental services the [Children] receive at their school. While Mother initiated a custody action in 2021, she did little to assert and preserve her custodial rights. Mother was well aware the [Children] were in the primary custody of Father and being cared for on a daily basis by Father and Stepmother. Mother had an active custody docket that had

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she desired to pursue physical custody and visitation she could have filed a modification petition or a petition for contempt. Mother could have requested to be informed about the medical, educational and emotional developments of the [Children] even after she no longer had legal custody decision making authority. Mother could have scheduled visitation through ABC as requested by Father when he was no longer comfortable supervising the visitation. . . . Therefore, the court finds that the petitioner has established [that Mother] . . . failed to perform parental duties for at least six months prior to the filing of the petition.

Orphans’ Court Opinion (“O.C.O.”), 9/26/2023, at 9-10 (unpaginated). The

record supports the orphans’ court’s conclusions.

As related supra, Mother last saw the Children in April 2022, more than

one year prior to the filing of the involuntary termination petition. See N.T. at

16, 54. Father testified that after this visit Mother asked to see the Children

two or three times, and each time he told her to set up the visits with ABC.

See id. at 19. Yet Mother never contacted ABC to assert her visitation rights.

Despite maintaining regular contact with Mother via telephone, Father

testified that the Children are not receptive to even conversing with Mother.

See id. at 20 (“She doesn’t -- [A.L.B.] doesn’t talk, doesn’t want to talk at all.

And [L.A.B.] will talk but we -- it’s getting to the point now where I have to

give her candy to talk on the phone”). Additionally, Father testified that due

to the Children’s developmental diagnoses, they are only “somewhat” verbal

and can only respond to basic questions. Id. at 6-7.

Further, although she initiated a custody action in 2021, Mother failed

to file any further pleadings in the case despite not seeing the Children after

April 2022. See id. at 58-59. Mother testified that she received the paperwork

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to file a pleading from Dickinson College but “didn’t know how to completely

fill” it out. Id. at 59. Additionally, Father testified as follows on Mother’s lack

of involvement with the care of the Children:

Q: What involvement, if any, does [Mother] have in [the Children’s] care for their autism diagnosis?

A: Can you clarify that question?

Q: Sure. Absolutely. Did [Mother] participate in taking the [C]hildren to York in order to get them diagnosed?

A: No.

Q: Does she take them to the doctor’s that they go to now for their care for their autism?

Q: Did she do anything to get their shots back up to date after Children & Youth became involved?[1]

Id. at 13.

Based upon our review of the foregoing evidence, we conclude that the

orphans’ court did not abuse its discretion. It is undisputed that Mother failed

to perform parental duties for the Children, who have significant special needs,

well beyond the crucial six-month period. See In re Z.P., 994 A.2d 1108,

1119 (Pa.Super. 2010) (concluding that post-abandonment contact must be

steady, consistent, and contribute to the psychological health of the child).

1 As related supra, CYS became involved with Mother because her oldest children, were not attending school. See N.T. at 8-9, 47.

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Moreover, Mother did not file a petition to modify the existing custody order,

failed to engage visitation via ABC, and failed to perform any parental duties

for the Children. See L.A.K., 265 A.3d at 592 (“Fortitude is required, as a

parent must act with ‘reasonable firmness’ to overcome obstacles that stand

in the way of preserving a parent-child relationship and may not wait for a

more suitable time to perform parental responsibilities.”). Accordingly, as we

discern no error of law or abuse of discretion, we will not disturb the orphans’

court’s finding of grounds for termination pursuant to Section 2511(a)(1). 2

While the trial court also found that termination was proper under

Section 2511(b), Mother failed to raise any challenges to this conclusion either

in her concise statement or in her statement of questions presented in her

brief. See Concise Statement, 8/11/2023; Mother’s Brief at 3. Thus, any

argument regarding this section is waived. See In re M.Z.T.M.W., 163 A.3d

462, 466 (Pa.Super. 2017) (reiterating that issues not included in a concise

statement of errors complained of on appeal and statement of questions

involved are waived).

Even if Mother preserved a challenge to the orphans’ court’s findings

regarding Section 2511(b), we would affirm. Section 2511(b) affords primary

2 Having found sufficient grounds for the termination of Mother’s parental rights were presented under Section 2511(a)(1), it is unnecessary to review Mother’s argument that termination was not warranted under Section 2511(a)(2). See In re D.L.B., 166 A.3d at 327 (“[w]e need only agree with the trial court as to any one subsection of Section 2511(a), in addition to Section 2511(b), to affirm an order terminating parental rights”).

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consideration to the developmental, physical and emotional needs and welfare

of the child. See T.S.M., 620 Pa. at 628, 71 A.3d at 267. “Notably, courts

should consider the matter from the child’s perspective, placing [their]

developmental, physical, and emotional needs and welfare above concerns for

the parent.” In the Interest of K.T., 296 A.3d 1085, 1105 (Pa. 2023). This

determination “should not be applied mechanically,” but “must be made on a

case-by-case basis,” wherein “the court must determine each child’s specific

needs.” Id. at 1106. Accordingly, there is no “exhaustive list” of factors that

must be considered in this context. Id. at 1113 n.28.

The orphans’ court issued the following findings pursuant to Section

2511(b):

Mother has not shown she [] is able to meet the day to day needs of the [Children] nor provide them the continuity and routine they require for successful development. All of the [Children’s] day to day needs for several years have been provided by [Appellees]. [Appellees] are dependable and dedicated to the promotion of the healthy development of the [Children] by meeting their needs and providing the routine and consistency that is critical to their well- being. Stepmother is an adoptive resource for the [Children] and given Mother’s failure to fulfill her parental duties and provide the routine and consistency the [Children] desperately need to thrive; it is in their best interest for Mother’s parental rights to be terminated.

O.C.O. at 10-11 (unpaginated).

As the certified record overwhelmingly supports the court’s findings, we

discern no error of law or abuse of discretion in the court’s finding that

termination of Mother’s parental rights would best serve the Children’s

developmental, physical, and emotional needs and welfare.

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Based on the foregoing, we affirm the decrees involuntarily terminating

Mother’s parental rights.

Decrees affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 1/24/2024

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