In the Interest of:W.R.B. A Minor, Appeal of: S.B.

• Court: Superior Court of Pennsylvania
• Decided: January 27, 2017
• Docket: 1143 WDA 2016
• Status: Unpublished

Opinion

J-S92043-16 J-S92044-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF W.R.B., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : APPEAL OF: S.B., MOTHER : No. 1143 WDA 2016

Appeal from the Decree July 15, 2016 in the Court of Common Pleas of Blair County Orphans’ Court, at No(s): 2016 AD 8

IN THE INTEREST OF W.R.B., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : APPEAL OF: S.B., MOTHER : No. 1144 WDA 2016

Appeal from the Order Entered July 15, 2016 in the Court of Common Pleas of Blair County Civil Division, at No(s): Docket No. CP-7-DP-64-2013 FID: 7-FN-36-2013

IN THE INTEREST OF W.R.B., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: T.S., FATHER : : No. 1242 WDA 2016

Appeal from the Decree July 15, 2016 in the Court of Common Pleas of Blair County Civil Division, at No(s): No. 2016 A.D. 8

BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 27, 2017

Before us are the appeals of S.B. (Mother) and T.S. (Father) from the

July 15, 2016 decree that terminated their parental rights to W.R.B. (Child),

as well as the July 15, 2016 order that ruled out Child’s Maternal Great-Aunt

*Retired Senior Judge assigned to the Superior Court. J-S92043-16 J-S92044-16

(MGA) and Maternal Great-Uncle (MGU) as placement and adoptive

resources. After careful review, we affirm as to Father and dismiss as to

Mother.

The trial court’s opinion authored for these appeals contains the

following case history. Child was born in February 2012. Blair County

Children Youth and Families (CYF) became involved with the family later that

year, receiving reports of Mother’s drug use, mental health issues, arrest

and incarceration. Upon Mother’s release from prison in February 2013, a

safety plan was put in place providing that Child would reside with her

Maternal Great-Grandmother (MGG), MGG would supervise all of Mother’s

contact with Child, and Mother would not remove Child from MGG’s

residence. However, service providers reported to CYF unsatisfactory

physical conditions in MGG’s home, a volatile relationship between MGG and

Mother, and that Mother was not attending scheduled appointments.

Mother’s criminal history dated back to July 2012, when she pled guilty

to simple assault and received a sentence of probation. Thereafter, Mother

was in and out of prison for probation violations. In June 2013, Mother

tested positive for amphetamines and marijuana, and was detained by her

probation officer. In August 2013, she pled guilty to retail theft and received

another sentence of probation.

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Father’s criminal history extends to a year before Child’s birth, when

he pled guilty to disorderly conduct. Each year thereafter brought a new

guilty plea: to recklessly endangering another person and simple assault in

2012; to retail theft, criminal mischief, and harassment in 2013; to theft by

unlawful taking and public drunkenness in 2014; and to possession of drug

paraphernalia in 2015. Father was minimally involved with Child during this

time.

Mother’s drug abuse continued, and MGG confirmed to CYF that

Mother took Child from MGG’s home at times overnight. In May 2015, the

court granted legal and physical custody to MGG and permitted only

supervised contact between Child and her parents. In June 2015, Child was

adjudicated dependent, with continued custody granted to MGG and Mother

and Father ordered to participate in services such as drug and alcohol,

mental health, and reunification services, and to comply with all

recommended treatment.

A September 2015 status conference revealed that Mother was again

residing with MGG, and Father was residing in the Cambria County Prison.

In November 2015, CYF filed a motion for a goal change, resulting in a

January 5, 2016 order changing the goal to adoption, removing Child from

MGG’s home, and vesting physical and legal custody in CYF. Mother and

MGG appealed that order. In the meantime, Child was placed with Foster

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Parents. Ultimately, MGG discontinued her appeal and this Court affirmed

the order from which Mother appealed. In Interest of W.R.B., No. 146

WDA 2016, 2016 WL 5921019 (Pa. Super. Sept. 9, 2016).

While Mother’s appeal was pending, the trial court held hearings

concerning CYF’s petition to terminate the parental rights of Mother and

Father, and Mother’s request that MGA and MGU be considered as

permanent resources for Child. After several days of hearings, the trial court

entered a decree granting CYF’s petition under 23 Pa.C.S. § 2511(a)(2),

(a)(5), (a)(8), and (b), ruled out MGA and MGU as an adoptive resource,

and directed CYF to move forward with adoption.

Mother and Father timely filed notices of appeal and statements of

errors complained of on appeal, each claiming that the trial court erred in

granting the termination petition and in ruling out MGA and MGG as a

resource. On November 9, 2016, after the appellate briefing was complete,

the parties filed in this Court a stipulation that Mother had died on October

24, 2016.

We first address the effect Mother’s death has on her appeals. “An

issue before a court is moot when a determination is sought on a matter

which, when rendered, cannot have any practical effect on the existing

controversy.” Printed Image of York, Inc. v. Mifflin Press, Ltd., 133

A.3d 55, 59 (Pa. Super. 2016) (citation and internal quotation marks

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omitted). “Where the issues in a case are moot, any opinion issued would

be merely advisory and, therefore, inappropriate.” Stuckley v. Zoning

Hearing Bd. of Newtown Twp., 79 A.3d 510, 516 (Pa. 2013).

Although we have found no Pennsylvania case that is directly on point,

we conclude that Mother’s death renders this appeal moot. Accord In re

A.Z., 190 Cal. App. 4th 1177, 118 Cal. Rptr. 3d 663 (2010) (holding the

father’s death caused the appeal from the order terminating his parental

rights to become moot); State in Interest of Minor Female Child, 470

So. 2d 595, 596 (La. Ct. App. 1985) (“The mother’s death terminated her

parental rights and renders her appeal moot.”). Further, the issues

presented are not likely to avoid review upon their repetition in other cases.

Cf. In re Estate of Border, 68 A.3d 946, 954 (Pa. Super. 2013) (reviewing

merits of appeal that was technically moot because issues, including the

powers of the orphans’ court to revoke an advance directive/power of

attorney, were capable of repetition but likely to evade appellate review).

Accordingly, because Mother’s death precludes her exercise of any parental

rights, we dismiss as moot Mother’s appeals docketed at 1143 WDA 2016

and 1144 WDA 2016.

Turning to Father’s appeal, we begin with our standard of review.

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

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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. As we explained in In re L.M., 923 A.2d 505 (Pa. Super. 2007),

[i]nitially, 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 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. at 511.

The governing statute provides as follows, in relevant part.1

1 We may affirm a decree terminating parental rights if we agree with the trial court’s determination under any subsection of 23 Pa.C.S. § 2511(a). In re N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011). -6- J-S92043-16 J-S92044-16

(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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(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. …

23 Pa.C.S. § 2511.

“The grounds for termination 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) (citations

Here, the trial court found that Child has never been in Father’s care or

control. Trial Court Opinion, 9/6/2016, at 29. Indeed, Father has had only

limited contact with Child since her birth. Id. Further, Father acknowledged

at the final hearing that he still was “not a resource for her.” Id. at 28.

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Father’s arguments of trial court error are as follows. He notes that,

at the time his parental rights to Child were terminated, he had just been

released from jail and “had begun the process of establishing himself in the

community, seeking employment, and treatment.” Father’s Brief at 11.

Although he conceded at the termination hearing that he was not at that

time “in position to care for [Child], he supported a reasonable alternative”:

namely placing her with MGA and MGU. Id. Father further argues that the

record “does not support more than cursory conclusions concerning [C]hild’s

bond with [F]ather.” Id.

We are unpersuaded by Father’s arguments. Initially we note that the

determination of where a dependent child is placed is not based upon the

wishes of the parent. In re K.C., 903 A.2d 12, 14–15 (Pa. Super. 2006)

(“When a child is adjudicated dependent, the child’s proper placement turns

on what is in the child’s best interest, not on what the parent wants….”).

Thus, the trial court was under no obligation to accede to Father’s wishes to

place Child with MGA and MGU.2

2 Moreover, the record supports the trial court’s decision to rule out MGA and MGU as resources for Child. CYF caseworker Kendra Wheelden offered testimony to show that the involvement of MGA and MGU had failed to serve Child’s best interests. N.T., 6/21/2016, at 1-19. From this, the trial court reasonably concluded that placement with MGA and MGU presented a significant risk that Child would “continue to be exposed to volatile situations and police involvement.” Trial Court Opinion, 9/6/2016, at 27. -8- J-S92043-16 J-S92044-16

More importantly, “[t]he courts of this Commonwealth have long held

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.” In re

Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (citation and internal

quotation marks omitted).

At no point in Child’s life has Father demonstrated a willingness and

ability to parent Child. Father offered no testimony regarding when, if ever,

he will be able to do. Based upon his history and seeming lack of interest in

Child, the trial court did not err in concluding that Father will not remedy the

causes of his failure to provide parental care to Child. See, e.g., In re

Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (affirming

mother’s termination under subsection 2511(a)(2) where, after failing to

comply with services upon her release from incarceration, she “failed to

establish and maintain a lifestyle that would permit her to provide long-term

care for [c]hild, and [she] cannot remedy the causes of [c]hild’s placement

within a reasonable time”). Father’s arguments as to the trial court’s

findings under subsection 2511(a)(2) are without merit.

Nor are we persuaded that the trial court erred in finding under

subsection 2511(b) that Child’s best interests are served by terminating

Father’s rights and freeing Child for adoption.

Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child. …

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[T]he 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. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (internal

citations and quotation marks omitted).

CYF presented ample evidence that Foster Parents are meeting Child’s

developmental, physical, and emotional needs, and that Child is bonded with

them, particularly with Foster Mother. See N.T., 6/28/2016, at 43 (Foster

Mother testifying as to Child’s increasing comfort and affection for Foster

Parents); id. at 66-67 (therapist Jennifer Johnson testifying that Child is

“very comfortable” with Foster Parents and has connected with Foster

Mother in a way helpful to her development). In May 2016, Child’s sister,

D.B.,3 joined her in living with Foster Parents, causing Child to be “the most

excited big sister.” Id. at 45. D.B.’s arrival in the home led to Child viewing

them as a family, with Child beginning to call Foster Father “daddy.” Id. at

46. In Foster Parents’ care, Child is receiving the structure and attention

she needs. Id. at 67, 70.

Conversely, Father offered no testimony of any interaction with Child.

There is no record evidence that Child even knew her Father, let alone that

3 Father testified that he may be the father of D.B., but wanted a DNA test to confirm. N.T., 6/28/2016, at 127-28. - 10 - J-S92043-16 J-S92044-16

she had a bond with him such that she would suffer any harm from

permanently removing him from her life. In re K.Z.S., 946 A.2d 753, 762-

63 (Pa. Super. 2008) (“In cases where there is no evidence of any bond

between the parent and child, it is reasonable to infer that no bond exists.”).

Accordingly, the trial court acted in its discretion in concluding that CYF met

its burden under subsection 2155(b).

Thus, the record supports the trial court’s determinations that Child

had been in placement for well over 12 months, Father still is unable to

parent her, and terminating Father’s rights best served Child’s

developmental, physical, and emotional needs and welfare. The trial court

did not err in granting CYF’s petition as to Father.

Appeals at 1143 WDA 2016 and 1144 WDA 2016 dismissed as moot.

Decree at 1242 WDA 2016 affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/27/2017

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