J-S57044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: P.E., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: L.E., MOTHER

                                                     No. 1194 EDA 2014


                Appeal from the Decree entered March 19, 2014
               In the Court of Common Pleas of Monroe County
               Orphans' Court at No: 88 DP 2013, 2 O.C.A. 2014


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 29, 2014

       L.E. (Mother) appeals from the decree entered March 19, 2014, which

terminated involuntarily her parental rights to her minor child P.E. (Child),

born in September of 2013.1 We affirm.

       Prior to Child’s birth, in November of 2010, Father was accused of

sexually abusing two of Child’s older siblings.    Criminal charges were filed

against Father, and Mother also was charged in connection with the abuse.

The couple’s five children were placed in foster care, and Mother’s parental

rights to the children were terminated on February 13, 2012.        In July of

2013, Mother was tried and convicted of endangering the welfare of children

____________________________________________


1
  The decree also terminated the rights of Child’s father, D.E. (Father), who
is not a party to the instant appeal.
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and corruption of minors.2 On February 18, 2014, she was sentenced to two

to five years in prison. During Mother’s incarceration, in August of 2013, it

was discovered that Mother was pregnant with Child. Child was taken into

foster care upon his release from the hospital, and placed with three of

Mother’s other children.

       Meanwhile, Children & Youth Services (CYS) became aware that

Mother had yet another child, a daughter, who was residing in North

Carolina with Child’s maternal grandmother (Grandmother). Mother had not

reported the existence of this child, who was born in September or October

of 2012, to CYS.

       On January 6, 2014, CYS filed a petition to terminate Mother’s parental

rights to Child.    A hearing was held on March 14, 2014, and the orphans’

court entered a decree terminating Mother’s rights on March 19, 2014.

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).

       Mother now raises the following issue on appeal.

       Whether the [l]ower [c]ourt erred by terminating Mother’s
       [p]arental [r]ights within 5 ½ months of the birth of the child,
       despite Mother’s compliance with the family service plan to the
       best of her ability, and despite a lack of clear and convincing

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2
  The exact circumstances surrounding Mother’s criminal charges are not
contained in the certified record. However, Mother acknowledges that “[h]er
convictions stemmed from acts of omission regarding the sexual abuse her
husband had perpetrated on two of her daughters.” Mother’s Brief at 10.



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      evidence that termination best served the child’s emotional
      needs and welfare?[]

Mother’s Brief at 6.

      Our Supreme Court recently reiterated the applicable standard of

review as follows:

      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 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.A. §§ 2101-2938, which requires a bifurcated

analysis.

      Our case law has made clear that under Section 2511, the court
      must engage in a bifurcated process prior to terminating
      parental rights. 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 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

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     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). The

burden is upon the petitioner to prove by clear and convincing evidence that

the asserted statutory grounds for seeking the termination of parental rights

are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

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

pursuant to Section 2511(a)(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:

                                     ***

         (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.



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23 Pa.C.S.A. § 2511(a)(2), (b).

      To satisfy the requirements of Section 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. In re Adoption of M.E.P., 825 A.2d

1266, 1272 (Pa. Super. 2003).       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, 337 (Pa. Super. 2002).              Such

incapacity may be demonstrated by a parent’s incarceration.            As our

Supreme Court has explained,

      incarceration, while not a litmus test for termination, can be
      determinative of the question of whether a parent is incapable of
      providing “essential parental care, control or subsistence” and
      the length of the remaining confinement can be considered as
      highly relevant to whether “the conditions and causes of the
      incapacity, abuse, neglect or refusal cannot or will not be
      remedied by the parent,” sufficient to provide grounds for
      termination pursuant to 23 Pa.C.S. § 2511(a)(2).

In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012) (citations omitted).

      With respect to Section 2511(b), the requisite analysis is as follows:




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      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that the 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) (some

citations omitted).

      Instantly, Mother argues that the orphans’ court “erred in finding that

[Mother] did not meet her responsibilities as a parent while incarcerated.”

Mother’s Brief at 8. Mother insists that her incarceration cannot, by itself,

support the termination of her parental rights, and that she has “evidenced a

clear and settled purpose to provide care, support and love for” Child. Id.

While Mother admits that the orphans’ court’s “findings regarding [Mother’s]

incarceration and the circumstances surrounding [Child’s] birth arguably

justify the court’s determination that [CYS] sustained its burden under”

Section 2511(a)(2), she contends that “it should be clear from the record

that the lower court erred in determining that [CYS] established its burden

under” Section 2511(b). Id. at 11. Mother then goes on to list the “steps

[she] has taken to establish a connection with” Child, including completing

parenting and life skills classes, completing drug and alcohol counseling,


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filing for divorce from Father, and taking “affirmative steps to establish

visitation” with Child. Id.

      We first address whether the orphans’ court erred by terminating

Mother’s rights with respect to Section 2511(a)(2). Here, the orphans’ court

concluded that Mother’s parental rights should be terminated because of her

present incarceration, and because of her history of failing to protect Child’s

older siblings from abuse. Orphans’ Court Opinion, 4/28/2014, at 4. The

court emphasized that “Mother has provided no care to the minor child since

his birth, and will be unable to provide any care at least through the time of

her release from incarceration.” Id. at 5.

      The orphans’ court also noted “other concerns regarding Mother’s

ability to care for [Child] appropriately even after her release.”   Id.   The

court found that Mother intentionally concealed her pregnancies with both

her sixth child and Child, and expressed concern that Mother “chose to have

two more children with Father after he was charged with sexually assaulting

two of their five children.” Id. at 5-6. The orphans’ court observed that the

sixth child was placed with Grandmother, and that Grandmother “had

another relative living in her home who had a criminal record, [sic] that

prevented the placement of [Child] into that home.”      Id. at 5.   The court

reasoned that Mother had failed to show any remorse or concern for her

actions during the termination hearing, and that, “[a]lthough Mother has not

yet had the opportunity to care for [Child] since he was born, we are


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convinced by her prior actions, inactions and testimony, that she will not be

able to provide essential care to [Child] in the future.” Id. at 7.

      Our review of the record supports the orphans’ court’s findings. The

record reflects that Mother was first incarcerated on July 23, 2013, and that

she is serving a sentence of two to five years in prison, including time

served. N.T., 3/14/14, at 19, 36-37. Mother received 174 days of credit for

time served and, at a minimum, will have to be incarcerated for “about

another year and a half” from the date of her termination hearing. Id. at

27.   Mother’s incarceration has rendered her incapable of parenting Child

from the time Child was born, and it is unclear precisely when Mother will be

released.

      Moreover, considering Mother’s prior history, we agree with the

orphans’ court that it is unlikely that Mother will ever be able to parent Child

appropriately.    While Mother testified that she had completed a “life

application” class, and a “parenting and family skills class,” while in prison,

she was unable to articulate with any detail what she learned in these

classes.    Id. at 39.   For example, when asked about her life application

class, Mother responded, “It’s a life application. It just helps with skills to

help better yourself and to help you with just day-to-day life and just

education about a broad amount of everything.” Id. When asked about her

parenting class, Mother explained that it involved, “Parenting and family

skills, specifically, for parent and child, and it helps with how to protect your


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child and various and various different subjects and parenting. . . . Just, I

just learned how to parent.       They also talk about discipline, talk about

raising your child, different things.” Id. Mother’s explanation of how drug

and alcohol counseling has improved her parenting abilities was likewise

vague. Mother stated that the counseling was, “just for education, because

you know, raising children, you need as much education as possible.” Id. at

40.

      Mother also indicated during the termination hearing that she had filed

for divorce from Father. Id. However, as observed by the orphans’ court,

Mother filed for divorce only after having an additional two children with

Father. Mother’s explanation for not getting a divorce earlier was that she

was unable to afford it. Id. at 41. Mother struggled to explain how she had

become    more   financially   secure   in   recent    months,   despite   being

incarcerated. Id. at 46. Mother claimed that she saved up money that she

had received from Father’s father for doing yard work and “things in the

house.” Id.

      In addition, the record confirms the orphans’ court’s conclusion that

Mother had engaged in deceitful behavior by concealing the birth of her sixth

child, and by hiding her pregnancy with Child.        Mother claimed during her

termination hearing that she did not know she was pregnant with Child until

her incarceration.   Id. at 45.   However, Mother was approximately seven

months pregnant at the time she was incarcerated. Id. at 50. According to


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Mother, she “wasn’t even showing.”     Id. at 51.   Mother then went on to

claim that her pregnancy was not discovered until three weeks after her

intake, when she was “approximately 33 weeks,” or over eight months

pregnant.   Id. at 51-52.    In contrast, CYS caseworker Jennifer Payne-

Fetherman testified that she contacted Grandmother during this period. Id.

at 9. Grandmother was aware that Mother was pregnant, and she indicated

that Mother intended to send Child to live with family in Oklahoma.       Id.

Grandmother informed Ms. Payne-Fetherman that Mother had been trying to

“stay under the radar, since [CYS was] still involved, and she was involved

in the criminal proceedings.” Id. at 9-10.

      Similarly, Mother’s sixth child was born “while the criminal charges

were pending and [Mother] was out on bail,” and the child was given a last

name different than Mother’s.     Id. at 8, 31, 47.    Ms. Payne-Fetherman

testified that Mother had told her specifically that she had not had any

additional children after the initial five but before Child. Id. at 6-7. When

asked if she ever reported the existence of the sixth child to CYS, Mother

stated that she did not, because “I wasn’t in contact with anyone. It was

like a period of -- there was nothing going on at that particular period.” Id.

at 49.   Mother testified that she placed her sixth child in the care of

Grandmother, not because she was attempting to hide the child, but

because she “thought it would be best and safest for [the sixth child] to

remain with my mother.” Id. at 42. However, Mother could not provide a


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clear explanation as to why this would be the case. Mother elaborated as

follows.

      “Because of the legal issues that I was facing; all of the things
      that I was facing. . . . Like I said, just legal issues. There
      wasn’t a way for me to -- it just wasn’t feasible because she was
      an infant, and in her best interest to be with my mother at that
      time.”

Id. at 48.

      Moreover, Child may have faced a considerable safety risk living with

Grandmother, as Mother’s brother lives with Grandmother, and he has an

“extensive drug criminal history.” Id. at 16.

      In sum, the record reveals that Mother is presently incapable of being

a parent.    This incapacity is demonstrated by Mother’s incarceration, her

tragic history with her five oldest children, and what the orphans’ court

concluded were her attempts at hiding her two youngest children from CYS.

This incapacity has left Child without parental care and control for his entire

life, and it was reasonable for the orphans’ court to conclude that Mother

cannot, or will not, remedy this incapacity.     Thus, we conclude that the

orphans’ court did not abuse its discretion by terminating Mother’s parental

rights pursuant to Section 2511(a)(2).

      We now consider whether termination was warranted under Section

2511(b). With respect to the bond analysis pursuant to section 2511(b), our

Supreme Court has stated that, “[c]ommon sense dictates that courts

considering termination must also consider whether the children are in a

pre-adoptive home and whether they have a bond with their foster parents.”


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T.S.M., 71 A.3d at 268 (citation omitted).      The Court directed that, in

weighing the bond considerations pursuant to section 2511(b), “courts must

keep the ticking clock of childhood ever in mind.” Id. at 269. The T.S.M.

Court observed that, “[c]hildren are young for a scant number of years, and

we have an obligation to see to their healthy development quickly.      When

courts fail . . . the result, all too often, is catastrophically maladjusted

children.” Id.

     Here, the orphans’ concluded that it would be in Child’s best interest if

Mother’s parental rights were terminated. Id. The court found that Child is

bonded with his foster parents, that he has no bond with Mother, and that

he is unlikely to develop a bond given Mother’s incarceration.            Id.

Additionally, the orphans’ court observed that termination “would ensure

[Child] remain in the pre-adopt home with his other siblings, where he has a

bond, where he is safe and where he has resided since birth.” Id.

     Again, the record supports the orphans’ court’s decision. Ms. Payne-

Fetherman explained that she has had the opportunity to see Child interact

with his siblings, and that they “adore” Child, and “love having him there.”

N.T., 3/14/2014, at 23.      Ms. Payne-Fetherman testified that Child is

“extremely, absolutely” bonded with his siblings, and “without a doubt,

absolutely” bonded with his foster parents. Id. Conversely, there was no

evidence presented at the termination hearing that Child was bonded with




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Mother, and it is highly unlikely that any bond exists, given that Child was

removed from Mother immediately after his birth.

      Further, we agree that it would be difficult for Mother and Child to

develop such a bond during her incarceration.         Mother’s visits with Child

consist of putting a phone receiver up to Child’s ear and allowing Mother to

speak to him from behind a pane of glass. Id. at 25. At the time of the

hearing, these visits took place every two weeks or so, and “usually last[ed]

anywhere from 15 minutes to 30 minutes, depending on [Child] and his

mood that day.” Id. at 18-19. Mother testified that, while she tried to have

“special visits” with Child that did not take place behind glass, she was

informed that “the facility doesn’t have a clean enough, or an appropriate

enough, room; otherwise they would allow it, but they can’t allow it because

they don’t have the setup for it.” Id. at 44. Mother also admitted that she

had not mailed Child any cards or letters, and had not “had any contact at

all from the jail” other than visits. Id. at 47-48.

      Thus, it is clear that it would be in Child’s best interest if Mother’s

parental rights were terminated.     To conclude otherwise would deny Child

his place in a loving and stable family, and would condemn Child to a state

of uncertainty for the first two to five years of his life, based solely on

speculation that Mother, who has never actually parented Child, who has

already proven her dramatic incompetence as a parent, and with whom Child

has no bond, will one day be able to care and provide for him.


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     We therefore conclude that the orphans’ court did not abuse its

discretion by terminating Mother’s parental rights pursuant to Section

2511(a)(2) and (b), and we affirm the decree of the orphans’ court.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014




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