Case Information

*-711 Circulated 07/14/2017 02:24 PM NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: H.D.L., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA :

:

APPEAL OF: C.G., MOTHER : No. 938 EDA 2017

Appeal from the Order Dated February 2, 2017 In the Court of Common Pleas of Montgomery County Orphans’ Court at No(s): 2016-A0182 IN RE: ADOPTION OF: A.H.L., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA :

:

APPEAL OF: C.G., MOTHER : No. 939 EDA 2017

Appeal from the Order Dated February 2, 2017 In the Court of Common Pleas of Montgomery County Orphans’ Court at No(s): 2016-A0183 IN RE: ADOPTION OF: K.N.L., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA :

:

APPEAL OF: C.G., MOTHER : No. 940 EDA 2017

Appeal from the Order Dated February 2, 2017 In the Court of Common Pleas of Montgomery County Orphans’ Court at No(s): 2016-A0184 IN RE: ADOPTION OF: O.R.L., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA :

:

APPEAL OF: C.G., MOTHER : No. 941 EDA 2017

Appeal from the Order Dated February 2, 2017 In the Court of Common Pleas of Montgomery County Orphans’ Court at No(s): 2016-A0185 BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 24, 2017

Appellant, C.G. (“Mother”), appeals from the orders entered in the

Montgomery County Court of Common Pleas, Orphans’ Court, which changed

the family goal to adoption and granted the petitions of the Office of Children

and Youth (“OCY”) for involuntary termination of Mother’s parental rights to

her minor children, K.N.L., O.R.L., A.H.L., and H.D.L. (“Children”). ^[1] We

affirm.

The relevant facts and procedural history of this case are as follows.

Mother and Father are the parents of K.N.L. (born September 2004), O.R.L.

(born April 2008), A.H.L. (born January 2010), and H.D.L. (born October

2013). The family has been involved with OCY since 2011, and OCY

removed Children from parents’ care on several occasions prior to October

30, 2015. On October 30, 2015, Children were removed from parents’ care

due to Mother’s arrest on an outstanding warrant, the uninhabitable

conditions of the home, and the discovery of a woman, hiding in one of

Children’s bedrooms, overdosing on illegal drugs. OCY obtained emergency

legal and physical custody of Children, and on November 10, 2015, the court

adjudicated Children dependent. Children were placed together in a pre-

adoptive foster home.

Parents continually failed to complete FSP goals, which included

complying with probation, obtaining drug and alcohol treatment, maintaining

sobriety, and finding suitable housing. As a result, OCY filed petitions for

involuntary termination of parental rights on or about November 14, 2016.

The court held a termination hearing over two days on February 1 and 2,

2017. At the conclusion of the hearing, the court granted the petitions for

involuntary termination of parents’ parental rights to Children. On March 1,

2017, Mother timely filed notices of appeal, along with concise statements of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). This

Court consolidated the appeals sua sponte on April 5, 2017.

Mother raises six issues for our review:

DID THE TRIAL COURT ERR IN FINDING THAT THE COMMONWEALTH MET ITS BURDEN BY CLEAR AND CONVINCING EVIDENCE THAT [MOTHER] VIOLATED 23 PA.C.S. § 2511(A)(2) AND 23 PA.C.S. § 2511(A)(8)? DID THE TRIAL COURT ERR WHEN IT FOUND THAT, AS IT PERTAINS TO [MOTHER], THE CONDITIONS WHICH LED TO THE REMOVAL OR THE PLACEMENT OF [CHILDREN] CONTINUE TO EXIST PURSUANT TO 23 PA.C.S. § 2511(A)(8)?

DID THE TRIAL COURT ERR IN FINDING THAT THE LACK OF A PARENTAL BOND WITH MOTHER IS SUPPORTED, AND NOT CONTRADICTED, BY THE EVIDENCE?

DID THE TRIAL COURT [ERR] APPLYING THE FRYE STANDARD AND FAILED TO CONDUCT A PROCEDURALLY CORRECT FRYE HEARING.

DID THE TRIAL [COURT ERR] WHEN IT FOUND THAT THE DEVELOPMENTAL, PHYSICAL, EMOTIONAL NEEDS AND WELFARE OF THE MINOR [CHILDREN] WERE BEST SERVED BY SEVERING THE PARENTAL BOND WITH [MOTHER?] DID THE TRIAL COURT ERR WHEN IT FOUND THAT THE CONDITIONS AND CAUSES WHICH LED TO THE REMOVAL OF THE MINOR [CHILDREN] CONTINUE TO EXIST AND THAT [MOTHER] CAN OR WILL NOT REMEDY THE CONDITIONS WITHIN A REASONABLE PERIOD OF TIME, PURSUANT TO 23 PA.C.S. § 2511(A)(2).

(Mother’s Brief at 4-5). ^[2]

Appellate review of termination of parental rights cases implicates the

following principles:

In cases involving termination of parental rights: “our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child.”

In re Z.P. , 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J. , 972

A.2d 5, 8 (Pa.Super. 2009)).

Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. … We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence.

In re B.L.W. , 843 A.2d 380, 383 (Pa.Super. 2004) ( en banc ), appeal denied , 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).

Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by the finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.

In re Adoption of A.C.H. , 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations and quotation marks omitted). The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M. , 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S. , 761 A.2d 1197, 1201 (Pa.Super. 2000) ( en banc ). If the court’s findings are supported by competent evidence, we must affirm the court’s decision, even if the record could support an opposite result. In re R.L.T.M. , 860 A.2d 190, 191-92 (Pa.Super. 2004).

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J. , 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied , 597 Pa. 718, 951 A.2d

1165 (2008)).

OCY filed petitions for the involuntary termination of Mother’s parental

rights to Children on the following grounds:

§ 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:

* * * (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.

* * * (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 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.A. § 2511(a)(2), (8), and (b). “Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions.” In

re Z.P., supra at 1117.

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 Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of …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.

In re L.M. , 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

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 (Pa.Super. 2002). “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities.” Id. at 340. The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger , 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley ,

719 A.2d 327, 330 (Pa.Super. 1998). Incarceration is also relevant in

termination decisions under Section 2511(a)(2) and can be a determinative

factor “in a court’s conclusion that grounds for termination exist under

[Section] 2511(a)(2) where the repeated and continued incapacity of a

parent due to incarceration has caused the child to be without essential

parental care, control or subsistence and that the causes of the incapacity

cannot or will not be remedied.” In re Adoption of S.P. , 616 Pa. 309, 329,

47 A.3d 817, 828 (2012). “If a court finds grounds for termination under

subsection (a)(2), a court must determine whether termination is in the best

interests of the child, considering the developmental, physical, and

emotional needs and welfare of the child pursuant to [Section] 2511(b). In

this regard, trial courts must carefully review the individual circumstances

for every child to determine, inter alia , how a parent’s incarceration will

factor into an assessment of the child’s best interest.” Id. at 332, 47 A.3d

at 830-31.

“[T]o terminate parental rights under Section 2511(a)(8), the following

factors must be demonstrated: (1) [t]he child has been removed from

parental care for [twelve] months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to

exist; and (3) termination of parental rights would best serve the needs and

welfare of the child.” In re Adoption of M.E.P. , 825 A.2d 1266, 1275-76

(Pa.Super. 2003). “Section 2511(a)(8) sets a 12–month time frame for a

parent to remedy the conditions that led to the children’s removal by the

court.” In re A.R. , 837 A.2d 560, 564 (Pa.Super. 2003). Termination

under Section 2511(a)(8) does not require the court to evaluate a parent’s

current willingness or ability to remedy the conditions that initially caused

placement or the availability or efficacy of Agency services. In re Adoption

of T.B.B. , 835 A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P.,

supra .

Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare. In re C.P. , 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,

paying close attention to the effect on the child of permanently severing the

bond.” Id. Significantly:

In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.

When conducting a bonding analysis, the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

“The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have …her rights terminated.” In re B.L.L. , 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this [C]ourt has held that the parental obligation is a positive duty which requires affirmative performance.

This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.

Because a child needs more than a benefactor, parental duty requires that a parent exert [herself] to take and maintain a place of importance in the child’s life. Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of…her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her physical and emotional needs.

In re B.,N.M. , 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied , 582 Pa.

718, 872 A.2d 1200 (2005) (internal citations omitted). “[A] parent’s basic

constitutional right to the custody and rearing of …her child is converted,

upon the failure to fulfill…her parental duties, to the child’s right to have

proper parenting and fulfillment of [the child’s] potential in a permanent,

healthy, safe environment.” Id. at 856.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Cheryl L.

Austin, we conclude Mother’s issues merit no relief. The Orphans’ Court

opinion comprehensively discusses and properly disposes of the questions

presented. ( See Orphans’ Court Opinion, dated March 16, 2017, relying on

and attaching its reasoning set forth on record at termination hearing, N.T.

Hearing, 2/2/17, at 129-50) (finding: under Section 2511(a)(8), Children

have been removed from Mother’s care since 10/30/15, which is more than

12 months; Mother suffers from depression and anxiety; testimony from

OCY witnesses showed Mother failed to complete treatment programs or

cooperate with OCY staff and services; Mother has problems with drug use,

tested positive for drugs on some occasions, and refused drug testing on

other occasions; Mother’s drug use, as well as her incarceration, made it

impossible for her to provide proper parental care and support necessary for

Children’s physical and mental wellbeing; Mother’s drug use was condition

that led to Children’s placement, and Mother has not demonstrated she can

remedy that condition within reasonable period of time; it is unfair for

Children to be forced to wait for Mother to become capable of parenting

them; under Section 2511(a)(2), OCY showed evidence of Mother’s neglect

of Children; Mother justified her actions due to “addict thinking”; Mother is

incapable of performing basic parental duties; under Section 2511(b), there

is minimal parental bond between Mother and Children; out of 35 visits

offered with Children, Mother attended only 15; youngest child refers to

foster mother as his mother; Children need more than Mother’s love and

affection; Mother has not been able to provide for Children’s needs;

Children’s best interests will be met by termination of Mother’s parental

rights; Children are bonded to foster parents). Accordingly, we affirm on the

basis of the Orphans’ Court opinion.

Orders affirmed.

Judgment Entered. Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2017

[1] The court also terminated the parental rights of J.L. (“Father”), who is not a party to this appeal. _____________________________ *Retired Senior Judge assigned to the Superior Court.

[2] Mother included the Frye hearing issue in her statement of questions involved, but she did not pursue any argument on this claim. Therefore, we deem the issue waived. See Butler v. Illes , 747 A.2d 943 (Pa.Super. 2000) (holding appellant waived claim where appellant failed to set forth adequate argument concerning claim on appeal).