In Re: Adoption of A.C. a minor, Appeal of: E.A.B.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF A.C. III, A MINOR IN THE SUPERIOR COURT OF CHILD PENNSYLVANIA

APPEAL OF: E.A.B., THE NATURAL MOTHER

No. 246 WDA 2017

Appeal from the Decree January 17, 2017 In the Court of Common Pleas of Fayette County Orphans' Court at No(s): 51 ADOPT 2015

BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ. MEMORANDUM BY BOWES, J.: FILED AUGUST 7, 2017 E.A.B. (“Mother”) appeals from the January 17, 2017 decree involuntarily terminating her parental rights to her now five-year-old son, A.C. III. We affirm.

A.C. III was born during March 2012 of Mother’s marriage to A.C., Jr.

(“Father”).1 He has two older siblings that were the subject of various child service agencies’ involvement with the family. The siblings also were the

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1 The status of Father’s parental rights to A.C. III are not clear from the certified record. While Father did not attend the termination hearing, his counsel appeared and relayed Father’s desire to voluntarily relinquish his parental rights. However, the record does not disclose the status of the relinquishment proceedings.

* Retired Senior Judge assigned to the Superior Court.

victims of sexual abuse, which led to Mother pleading guilty to two counts of endangering the welfare of children. On March 10, 2014, the Fayette County Court of Common Pleas Criminal Division imposed twenty-three months intermediate punishment, with three months house arrest. As a condition of her sentence, Mother was required to participate in sexual offender evaluation and treatment.

At birth, A.C. III tested positive for opiates, and Mother, a recovering heroin addict, tested positive for methadone. The result of Father’s drug test was positive for marijuana. The juvenile court temporarily placed A.C. III into emergency custody, but the child was returned to the family after Mother and Father submitted negative drug tests.

At some point subsequent to A.C. III’s birth, Mother and Father separated. During April 2014, Mother left A.C. III in Father’s extended care; however, Father was unable to care for his son, and Fayette County Child and Youth Services (“CYS”) intervened. Then-two-year-old A.C. III was filthy, lacked adequate clothing, and suffered from severe tooth decay. Mother could not be located. Father executed a consent to placement, and on May 15, 2014, the trial court adjudicated A.C. III dependent, and placed A.C. III with O.N. and C.N. (collectively “Foster Parents”), whom he refers to as “mom” and “dad,” in what is now his pre-adoptive foster home.

A.C. III’s initial permanency goal was reunification. Mother’s compliance with CYS’s reunification efforts was inconsistent. She attended

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seventeen of forty mental health counseling sessions scheduled with Psych- Med Associates in New Castle, Pennsylvania. Only two of Mother’s twenty- three absences were excused cancellations. Moreover, Mother did not advise her counselors about the court-ordered focus of her treatment. Instead, she requested medical management and therapy for a previously diagnosed bipolar disorder. Mother eventually abandoned treatment and has not made contact with her counselors since March 11, 2016.

As it relates to visitation with A.C. III, Mother neglected to have any physical contact with her son between April 2014 and January 2015. When she finally did attempt to initiate contact, the supervised visitations were inconsistent. Between January and August 2015, Mother attended fourteen of the thirty weekly visitations. Furthermore, she was resistant to CYS’s parenting recommendations and after several visitations that were stressful for A.C. III, the agency transferred supervision to CPP Behavior Health, the facility that was administering A.C. III’s behavioral therapy. Again, however, Mother disregarded the supervisors’ suggestions. Specifically, Mother ignored the child therapist’s explicit recommendation to forego bringing A.C. III unhealthy snacks, referring to herself as “mommy,” or initiating physical contact. Mother defied all three imperatives on the first visitation scheduled at the new facility.

Moreover, the supervised visitations continued to be a source of stress for A.C. III. He referred to Mother as “this lady I see” and had previously

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articulated his concern that “She [is] going to take me away from mommy and daddy and make me sleep in bunk beds at her house[.]” N.T., 2/22/16, at 4. In addition, the therapist observed that following his sustained interactions with Mother, A.C. III’s typically calm demeanor would become aggressive “almost to the point of defiant.” Id. at 10.

Mother’s last visitation with her son occurred on December 30, 2015.

On January 8, 2016, she called to cancel visits scheduled for the ensuing two weeks, purportedly due to her preparations for a surgical procedure on January 25, 2016. Following surgery, Mother failed to attend the next three scheduled visitations, and then on February 18, 2016, she called unexpectedly and requested to visit with A.C. III immediately. That request was denied.

Meanwhile, on November 23, 2015, CYS filed a petition to terminate Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8) and (b). The orphans’ court appointed counsel to represent Mother and A.C. III, respectively, and on January 17, 2017, it granted CYS’s termination petition. On the same date, the orphan’s court entered an opinion delineating the reason for its decision. This timely appeal followed, wherein Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement of errors complained of on appeal concomitant with her notice of appeal.

The Rule 1925(b) statement raised one broad issue, which Mother reiterates on appeal as follows:

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Did the Trial Court err by abusing its discretion in terminating the natural parent's rights as petitioner failed to sustain its burden of proof by clear and convincing evidence to show that the parent evidenced a settled purpose of relinquishing a settled claim to the child or refused to perform parental duties?

Mother’s brief at 6.

This Court reviews the determination of the orphans’ court for an abuse of discretion. In re D.C.D. 105 A.3d 662, 670-671 (Pa. 2014) (“When reviewing a trial court's decision to grant or deny a termination of parental rights petition, an appellate court should apply an abuse of discretion standard, accepting the findings of fact and credibility determinations if they are supported by the record, and reversing only if the trial court made an error of law or abused its discretion.”). This is a highly deferential standard and, to the extent that the record supports the court’s decision, we must affirm even though evidence exists that would also support a contrary determination. In re A.S., 11 A.3d 473, 477 (Pa.Super. 2010). CYS has the burden of proving the statutory grounds for termination by clear and convincing evidence. In re Adoption of L.J.B., 18 A.3d 1098 (Pa. 2011).

In termination cases, 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 the Interest of T.M.T., 64 A.3d 1119, 1124 (Pa.Super. 2013). As noted, CYS invoked the statutory grounds

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to terminate Mother’s parental rights pursuant to § 2511(a)(1), (2), (5), (8) and (b), which provide as follows.

(a) General Rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(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.

....

(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

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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.

23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).

Instantly, the orphans’ court decree did not specifically identify which statutory basis it relied upon to terminate Mother’s parental rights. However, the court’s concomitant opinion analyzed CYS’s overwhelming evidence in favor of termination in light of subsection (a)(1) and (b). Hence, we review the court’s determination in view of the grounds outlined in that provision.

With respect to § 2511(a)(1), this Court has explained,

A court may terminate parental rights under Section 2511(a)(1) where the parent demonstrates a settled purpose to relinquish parental claim to a child or fails to perform parental duties for at least the six months prior to the filing of the termination petition. The court should consider the entire background of the case[.]

In re A.S., supra at 482 (citations omitted). While the statute targets the six months immediately preceding the filing of the petition to terminate, the

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trial court must consider the entire history of the case and not apply the six- month statutory period mechanically. In re K.Z.S., 946 A.2d 753, 758 (Pa.Super. 2008).

Accordingly, in order to prevail, CYS was required to produce clear and convincing evidence of Mother’s conduct that fulfills either one of the two requirements outlined in § 2511(a)(1). In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (“parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.”) Our Supreme Court has noted that parental duty under § 2511(a)(1) includes “an affirmative duty to love, protect and support” the child and “to make an effort to maintain communication with that child.” In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012). When the parent’s fulfillment of those duties is made more difficult by impediments, “we must inquire whether the parent has utilized those resources at his or her command . . . in continuing a close relationship with the child.” Id.

Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must then engage in three additional 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

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pursuant to Section 2511(b). In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008).

Mother’s argument assails the orphans’ court’s determination that she failed to perform her parental duties and its implicit finding that she neglected to exercise reasonable efforts to overcome the impediments that she believes that Foster Parents and A.C. III’s therapist placed in her way during the supervised visitations. Specifically, she asserts, “The Trial Court Transcript reflects that the Appellant[’s] . . . efforts to both see and parent her child were frustrated by both the foster family, and CPP Behavioral Health. (N.T., February 22nd, 2016, at 19 through 21).” Mother’s brief at 11. Mother does not challenge the orphans’ court’s needs and welfare analysis or its determination that no parent-child bond exists between Mother and A.C. III.

After a thorough review of the certified record, the parties’ briefs, and the pertinent law, and following our examination of the opinion authored by the distinguished Nancy D. Vernon, we find that she has ably distilled CYS’s evidence in favor of terminating Mother’s parental rights pursuant to 2511(a) and (b), addressed the relevant issues, and performed the necessary needs-and-welfare analysis. We adopt her reasoning as our own. Accordingly, we affirm on the basis of her well-reasoned opinion dated January 17, 2017.

Decree affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/7/2017

Circulated 07/27/2017 02:58 PM