J-A10026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: THE ADOPTION OF L.G.L.S., A                    IN THE SUPERIOR COURT OF
MINOR                                                       PENNSYLVANIA

APPEAL OF: J.L.F., BIOLOGICAL
MOTHER
                                                           No. 1631 WDA 2015


              Appeal from the Order Entered September 21, 2015
               In the Court of Common Pleas of Bedford County
                    Orphans' Court at No(s): AD-1 for 2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E. AND SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                               FILED JUNE 27, 2016

       Appellant, J.L.F. (Mother), appeals from the September 21, 2015 order

involuntarily terminating her parental rights to her son, L.G.L.S., born in

January of 2011 (Child).         We reverse and remand in accordance with the

following decision.

       On    August      26,     2014,     Child’s   paternal   grandmother,   C.P.

(Grandmother), and her husband, P.E.P., II, Child’s step-grandfather

(Grandfather) (collectively, Paternal Grandparents), filed a petition in the

Court of Common Pleas of Cambria County for the involuntary termination of

Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and

(b).1 By consent order dated October 31, 2014, the trial court transferred

____________________________________________


1
 In addition, the record includes a petition to confirm consent to adoption
with respect to Child’s father, M.L.S., Jr. (Father), filed by Paternal
Grandparents in Cambria County on August 26, 2014. The record does not
(Footnote Continued Next Page)
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the matter to the Court of Common Pleas of Bedford County, the county

where Paternal Grandparents and Child resided, and where a child custody

complaint was pending, having been filed by Mother against Paternal

Grandparents one month before the termination petition, on July 25, 2014.

Trial Court Opinion, 9/21/15, at 1.

      The custody petition and the termination petition were scheduled for

hearing on February 18, 2015. At the beginning of the hearing, the court

stated that it would receive evidence regarding the termination petition first.

N.T., 2/18/15, at 6.           The following witnesses testified: Grandmother;

Grandfather; and Mother. The termination hearing was continued on June

19, 2015, during which Mother; S.M., Mother’s fiancé; Grandmother; and

Grandfather testified.2

      On August 26, 2012, Child was placed in the legal and physical

custody of the Cambria County Children and Youth Service (CYS) due to an

incident described by Mother as follows:

      That was the night that [Father] said to me that he was going to
      kill himself and that we should kill ourselves and he proceeded to
      open up the bottle of antifreeze that we had on the porch. And
      poured a glass, a cup of it for me and brought it to me. And
                       _______________________
(Footnote Continued)

reveal whether the petition was granted. In any event, Father has not filed
a notice of appeal, nor is he a party to this appeal.
2
  Notably, the court appointed a Guardian ad litem (GAL) by order dated
April 30, 2015. As such, the GAL did not participate during the first day of
the hearing. On the second day of the hearing, the GAL participated and
cross-examined all of the witnesses except S.M.



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      gave it to me to drink and then he also drank some and the next
      thing I knew I was in ICU at Conemaugh Hospital.

N.T., 6/19/15, at 11-12. She testified that Child “was upstairs in his crib, in

his room” during the incident. Id. at 12.

      On October 20, 2012, Child was placed in the custody of Paternal

Grandparents.    N.T., 2/18/15, at 9.    By permanency review order dated

November 28, 2012, the court transferred legal and physical custody of Child

from CYS to Paternal Grandparents, under the supervision of CYS. The order

provided that visits between Child and his parents “shall be at the discretion

of” Paternal Grandparents. Order, 11/28/12, at 3. Further, the order stated

that Mother had been in “minimal compliance with the permanency plan, and

that the only thing [she] has done is attend scheduled visits with [Child].

She has not established a stable home. She has not attended to her drug

and alcohol issues.” Order, 11/28/12, at 1.

      Mother, who has a Bachelor’s degree in business administration, and a

Master’s degree in elementary education, testified that her drug addiction

began in 2003 with prescription pain medication following an appendectomy.

N.T., 2/18/15, at 57, 64, 88. Mother testified that, in March of 2010, when

she began her relationship with Father, she “was very vulnerable.”      Id. at

58. She testified that Father was an alcoholic, and, although she had “never

been a drinker,” she started to drink “because it was easier to drink with him

than to not drink with him.” Id. at 65. Mother explained that Father was

physically abusive to her, resulting in her suffering broken bones, black

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eyes, and a broken eye socket. Id. at 63. She testified, “[t]here were times

when I would buy marijuana for him because it was easier to let him smoke

marijuana than to have him drink, because when he drank he became more

violent and aggressive than if he was smoking marijuana.” Id. at 65.

      After her suicide attempt, Mother remained with Father until June of

2013, when he was sentenced to 90 days imprisonment. Id. at 72. Mother

testified that, on June 15, 2013, she “walked to Conemaugh Memorial

Hospital and [ ] said, ‘I need help.’” Id. at 73.

      Mother immediately entered drug and alcohol treatment at the

Meadows, where she remained for eleven weeks. Id. Thereafter, she was

transported to White Deer Run for treatment, where she remained for

seventeen days.     Mother completed inpatient rehabilitation at Guadenzia

Concept, where she was successfully discharged after 90 days. Id. at 74.

Mother continued with intensive outpatient rehabilitation, and she testified

that she still has “a very strong support group of women in [Narcotics

Anonymous].”     Id. at 76.    By February 18, 2015, the first day of the

termination hearing, Mother had been clean and sober for twenty months.

Id. By June 19, 2015, the last day of the hearing, Mother had been clean

and sober, without relapse, for more than two years. N.T., 6/19/15, at 33.

      Mother testified that, since June of 2013, Father has made an

unspecified number of attempts to contact her, but she has never responded

to him or contacted him. N.T., 6/19/15, at 50. Mother currently resides in


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the home of her fiancé in Laurel, Maryland, with whom she has a daughter

who was nine months old at the time of the termination hearing. Id. at 36,

46, 52.

       By order dated September 21, 2015, and entered on September 22,

2015, the orphans’ court terminated Mother’s parental rights pursuant to 23

Pa.C.S.A. § 2511(a)(1) and (b).                In addition, by separate order dated

September 21, 2015, the court dismissed Mother’s custody complaint. On

October 15, 2015, Mother filed a notice of appeal and a concise statement of

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

On November 10, 2015, in lieu of an opinion pursuant to Pa.R.A.P. 1925(a),

the   orphans’ court directed this Court to               its memorandum opinion

accompanying the termination order.3

       On appeal, Mother presents the following question for our review:

       I. Whether the [orphans’] court’s termination of Mother’s
       parental rights is unsupported by clear and convincing evidence
       and constitutes an abuse of discretion and an err[or] of law in
       light of the Grandparents’ obstructive conduct[?]

Mother’s brief at 6.

       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
____________________________________________


3
  In its memorandum opinion, the orphans’ court noted that the GAL
opposed the termination of Mother’s parental rights. The court stated, “The
[GAL] cites the strides made by [Mother] to improve her circumstances and
supports a reestablishment of contact.” Trial Court Opinion, 9/21/15, at 6.



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

analysis.

      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
      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).




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      This Court need only agree with any one subsection of Section

2511(a), along with Section 2511(b), in order to affirm the termination of

parental rights.   In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).   In this case, Paternal Grandparents requested the involuntary

termination of Mother’s parental rights pursuant to Section 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:

         (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).


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     We have explained,

     To satisfy the requirements of section 2511(a)(1), the moving
     party must produce clear and convincing evidence of conduct,
     sustained for at least the six months prior to the filing of the
     termination petition, which reveals a settled intent to relinquish
     parental claim to a child or a refusal or failure to perform
     parental duties. In re Adoption of R.J.S., 901 A.2d 502, 510
     (Pa. Super. 2006). In addition,

           Section 2511 does not require that the parent
           demonstrate both a settled purpose of relinquishing
           parental claim to a child and refusal or failure to
           perform parental duties. Accordingly, parental rights
           may be terminated pursuant to [s]ection 2511(a)(1)
           if the parent either demonstrates a settled purpose
           of relinquishing parental claim to a child or fails to
           perform parental duties.

     In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
     91 (Pa. 1998).

           Once the evidence establishes a failure to perform
           parental duties or a settled purpose of relinquishing
           parental rights, the court must engage in three 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
           pursuant to Section 2511(b).

     Id. at 92 (citation omitted).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008).

     Parental duty is defined as follows:

     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 court
     has held that the parental obligation is a positive duty which
     requires affirmative performance.

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     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 himself 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 his or 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 . . . her physical and emotional
     needs.

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

     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. See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa. Super. 2003).

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

     Subsection 2511(b) focuses on whether termination of parental
     rights would best serve the developmental, physical, and

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      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. Id. 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. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
      2008).    Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 63.

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

      Instantly, in its memorandum opinion accompanying the subject order,

the orphans’ court found, “at this point [Mother] is in recovery and could

take up parental duties. [Mother’s] work in recovery is both impressive and

praiseworthy but does not change the fact that she has been so long out of

the child’s life he doesn’t know her.” Trial Court Opinion, 9/21/15, at 7.

      The court concluded that Mother’s conduct warranted termination

under Section 2511(a)(1).     Specifically, the court found, “Mother had no

contact with the child after October of 2012 and made no meaningful

attempt to reestablish contact until October of 2013.      This is a period of

approximately one year. Since the child has been removed from her care[,]

she has not performed parental duties.” Trial Court Opinion, 9/21/15, at 6.

Similarly, the court found that, “from at least August of 2012[,] when she

attempted suicide[,] through October of 2013[,] she was not in a position to




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care for her child and did not provide that care.” Id. at 7. For the reasons

that follow, we conclude the orphans’ court abused its discretion.

       Mother testified that, following Child’s placement in foster care on

August 26, 2012, until November 28, 2012, when the court transferred legal

and physical custody to Paternal Grandparents, she was granted bi-weekly

visits with Child at the CYS office.           N.T., 2/18/15, at 69.   The record

evidence demonstrates that Mother attended every visit.                Id.; Order,

11/28/12, at 1.       Mother acknowledged, at that time, she was unable to

appropriately care for Child. N.T., 2/18/15, at 70. As such, at the hearing

she attended that resulted in Child being placed in the custody of Paternal

Grandparents, Mother testified she “did not object.         …   I hugged both of

them and thanked them.           And I’m still grateful that [Child is] in a place

where he [is] being cared for.” Id. at 69.

       Less than two months later, in January of 2013, Child turned two years

old, and Mother telephoned to wish him a happy birthday. N.T., 2/18/15, at

21.   Grandmother testified that she placed Mother “on speaker phone so

[Child] could hear her….” Id. Mother testified that, in March of 2013, she

e-mailed Grandmother as a follow-up to a telephone conversation.4            N.T.,

6/19/15, at 18. Mother’s e-mail, dated March 3, 2013, was introduced as an

____________________________________________


4
 Mother testified that, between February and early March of 2013, she “sent
two, possibly three at the most, voice mails or texts [to Grandmother].”
N.T., 6/19/15, at 49.



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exhibit during the hearing. She stated in the e-mail, in part, “Last time we

talked I was trying to set something up for the weekend of the 9 th/10th to

visit with [Child]. … Please tell [Child] his mommy loves him and misses

him. I would very much like to see him and spend a few hours with him….”

Defendant’s Exhibit A. Mother testified Grandmother did not respond. N.T.,

6/19/15, at 23.

      In   June   of   2013,   when   Father   became   incarcerated,   Mother

commenced inpatient rehabilitation for substance abuse, for which she was

successfully discharged on October 13, 2013.       N.T., 2/18/15, at 75.    In

August of 2013, while in treatment, Mother wrote a letter to Grandmother.

Mother testified that her letter stated, “I was … in the program, … and that I

was appreciative of the fact that they had [Child], that I did want to

reconnect with my son. And that I hoped to be able to do that.” Id. The

record includes Grandmother’s handwritten response, dated September 11,

2013, which was nearly six pages long.         In her response, Grandmother

stated, in part, that she and Grandfather intend to adopt Child, and that

they “will give him a life that he deserves, that does not include you and

[Father].” Defendant’s Exhibit 1, at 2. In addition, she requested Mother

“do not ever ask to see [Child].” Id. at 5.

      On October 21, 2013, eight days after her discharge from inpatient

rehabilitation, Mother testified that she pursued her parental rights by first

telephoning her caseworker from Cambria County CYS.         N.T., 2/18/15, at


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76.   Mother testified that she ultimately made four telephone calls to the

caseworker, but she never received a response. Id. at 77. Mother testified

that she then made two telephone calls to her caseworker’s supervisor. Id.

Mother explained, “it was over a month and a half or so that I escalated and

escalated [in making contact with CYS], trying to find out what was going

on, what steps do I need to take and just is there anything that I can do.”

Id. Mother did not receive a response from the CYS supervisor. Id. at 77-

78.   Mother testified she next contacted the regional CYS office, and, by

January of 2014, she received a response.          Id. at 78.   As a result of this

contact, Mother received the name and address of her court-appointed

attorney in the dependency matter, who informed her that the “case had

been closed…. So, I was back to ground zero.” Id. at 78-79.

       On February 3, 2014, Mother hired private counsel “to request

visitation with” Child.5     N.T., 2/18/15, at 79.   The record includes a letter

from Mother’s counsel, dated April 1, 2014, requesting setting up a schedule

to commence visitation between Mother and Child.6 Defendant’s Exhibit 2.

Mother testified that counsel for Paternal Grandparents responded by letter
____________________________________________


5
   Mother’s counsel was admitted to the bar of Maryland, but not
Pennsylvania. Upon discharge from inpatient rehabilitation, Mother went to
live with her mother in Laurel, Maryland. N.T., 2/18/15, at 56; N.T.,
6/19/15, at 36.
6
  Mother testified that she paid counsel’s retainer fee on February 3, 2014.
She does not know why it took counsel until April 1, 2014, to mail the letter
to Paternal Grandparents. N.T., 2/18/15, at 79.



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in May of 2014, denying her request. N.T., 6/19/15, 34. As such, Mother

retained private counsel in Pennsylvania to represent her.   Id. at 34.   On

July 25, 2014, Mother filed a custody complaint in the Court of Common

Pleas of Bedford County, wherein she requested shared physical and legal

custody.   Trial Court Opinion, 9/21/15, at 1.   Paternal Grandparents then

filed the subject termination petition on August 26, 2014, as described

above.

     The foregoing testimonial and documentary evidence demonstrates

that Mother “act[ed] affirmatively with good faith interest and effort” to

preserve her parental relationship with Child since his placement in August

of 2012.   In re B.,N.M., supra.    Rather than yielding to the obstacles in

maintaining that relationship, that is, her drug and alcohol addiction, her

abusive relationship with Father, and the refusal of Paternal Grandparents to

allow visitation between her and Child, the evidence demonstrates that

Mother exercised “reasonable firmness” to overcome them.        Id.   Indeed,

Mother overcame her drug and alcohol addictions. She ended her abusive

relationship with Father. She resisted the refusal of Paternal Grandparents

and fought to maintain the parent-child relationship immediately upon her

discharge from inpatient rehabilitation.    Therefore, we conclude that the

orphans’ court abused its discretion in terminating Mother’s parental rights




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pursuant to 2511(a)(1).7          Based on the requisite bifurcated analysis in

termination of parental rights matters, we need not review the subject order

with respect to Section 2511(b). See In re L.M., supra. Accordingly, we

reverse the order involuntarily terminating Mother’s parental rights. In light

of this disposition, the order dismissing Mother’s custody complaint is null

and void. We remand this matter for further proceedings.

       Order reversed.      Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2016




____________________________________________


7
  Because the record overwhelmingly supports the finding of the orphans’
court that Mother is capable of assuming her parental duties, we discern no
abuse of discretion by the court in failing to terminate her parental rights
pursuant to Section 2511(a)(2).




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