J-S29045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

G.S. and J.S.,                                   IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                    Appellees

                          v.

E.J.T.,

                    Appellant                    No. 177 WDA 2015


              Appeal from the Order Entered December 29, 2014,
              in the Court of Common Pleas of Somerset County,
              Orphans’ Court, at No(s): Case #13 Adoption 2014

BEFORE: PANELLA, MUNDY, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED JUNE 24, 2015

        E.J.T. (Mother) appeals from the order entered December 29, 2014, in

the Court of Common Pleas of Somerset County, which terminated

involuntarily her parental rights to her minor son, G.M.T. (Child).1      We

affirm.

        Child was born in October of 2007.      In June of 2008, Mother was

incarcerated, and she placed Child in the care of his great-aunt, J.S. (Great-

Aunt), and his great-uncle, G.S. (Great-Uncle) (collectively Appellees).

Mother was released after 90 days, but again was incarcerated from January

of 2009 until January of 2011, during which time Child continued to reside


*
    Retired Senior Judge specially assigned to the Superior Court.
1
  The orphans’ court entered an order terminating the parental rights of
Child’s father, K.A. (Father), that same day. Father is not a party to the
instant appeal.
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with Great-Aunt and Great-Uncle.     After Mother was released, Great-Aunt

and Great-Uncle attempted to transfer Child back into Mother’s custody.

However, Mother relapsed into drug addiction in November of 2012, and was

incarcerated once more in December of 2012.

        On July 23, 2014, Great-Aunt and Great-Uncle filed a petition to

terminate Mother’s parental rights to Child involuntarily, along with a report

of intention to adopt Child. A termination hearing was held on December 11,

2014.     On December 29, 2014, the orphans’ court entered its order

terminating Mother’s rights. Mother timely filed a notice of appeal.2

        Mother now raises the following issue for our review.   “Whether the

[orphans’] court erred by terminating the natural mother[’]s parental rights

2
   Mother was represented by counsel during her termination hearing, but
filed her notice of appeal pro se. The certified record does not contain an
order permitting Mother’s trial counsel to withdraw. On January 20, 2015,
Mother filed an application for assignment of counsel, requesting that an
attorney be appointed to represent her on appeal. The orphans’ court
appointed Mother’s present counsel on January 23, 2015.

       Additionally, Mother did not file a concise statement of errors
complained of on appeal at the same time as her notice of appeal, as
required by Pa.R.A.P. 1925(a)(2)(i). The orphans’ court did not order
Mother to file a concise statement, but instead “reviewed a letter from
[Mother] to the Public Defender’s Office,” which is not contained in the
certified record, and tried to address the complaints Mother raised therein.
Orphans’ Court Opinion, 2/9/2015, at 1 (unnumbered pages). This Court
also did not order Mother to file a concise statement. Because Appellees
have not objected or claimed any prejudice as a result of Mother’s failure to
file a concise statement, we have accepted Mother’s statement in reliance on
our decision in In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009)
(holding that a mother’s failure to comply strictly with Pa.R.A.P.
1925(a)(2)(i) did not warrant waiver of her claims, as there was no
prejudice to any party).


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under 23 Pa.C.S.[] §[]2511 (a)(1), 23 Pa.C.S.[] §[]2511 (a)(2), and 23

Pa.C.S.[] §[]2511 (b).” Mother’s brief at 1.

     We consider Mother’s claim mindful of the following.

     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).

     Our courts apply a two-part analysis in reviewing a decree terminating

parental rights. 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.

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Id. at 511 (citations omitted).

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

pursuant to Sections 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.

23 Pa.C.S. § 2511(a)(2), (b).

      We first address whether the orphans’ court abused its discretion by

finding grounds for terminating Mother’s parental rights pursuant to Section

2511(a)(2).




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      In order to terminate parental rights pursuant to 23 Pa.C.S.A.
      § 2511(a)(2), the following three elements must be met: (1)
      repeated and continued incapacity, abuse, neglect or refusal; (2)
      such incapacity, abuse, neglect or refusal has 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) (citation

omitted)).      “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 omitted).         “[A] parent’s incarceration is relevant to the

section (a)(2) analysis and, depending on the circumstances of the case, it

may be dispositive of a parent’s ability to provide the ‘essential parental

care, control or subsistence’ that the section contemplates.” In re A.D., 93

A.3d 888, 897 (Pa. Super. 2014) (discussing In re Adoption of S.P., 47

A.3d 817 (Pa. 2012)).

      Instantly, the orphans’ court concluded that Mother is incapable of

parenting    Child,   and   that    Mother’s     parental   incapacity   will   continue

indefinitely.   Orphans’ Court Opinion, 12/29/2014, 9 (unnumbered pages).

The court emphasized Mother’s failure to care for Child for the majority of

his life, and the possibility that Mother may again relapse into drug

addiction. Id. Mother argues that she soon will be out of prison, and that

“her incapacity … will no longer be a factor.”              Mother’s brief at 17, 20.

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Mother highlights her efforts at maintaining a relationship with Child while

incarcerated, and the fact that she placed Child with Great-Aunt and Great-

Uncle.   Id. at 17, 19.       According to Mother, section 2511(a)(2) is

inapplicable in the instant matter, because Child is receiving proper parental

care, control, and subsistence from Great-Aunt and Great-Uncle, and

because she assisted Great-Aunt and Great-Uncle by allowing them to

withdraw money from a savings account to help provide for Child.3 Id. at

17-20.

      After a thorough review of the record in this matter, we conclude that

the orphans’ court did not abuse its discretion by findings grounds for

terminating Mother’s parental rights under section 2511(a)(2). During the

termination hearing, Great-Aunt testified that Mother appeared to be making

progress following her release from incarceration in January of 2011. N.T.,

12/19/2014, at 26-27. Mother was able to find a job and was “going to the

methadone plan,” and Child was spending two nights per week with Mother.

Id. at 27.    However, in November of 2012, Mother began to attend

treatment at the Twin Lakes rehabilitation facility. Id. at 22-23. Great-Aunt

explained that Mother left the facility, and violated her probation. Id. at 28.

Mother then overdosed while incarcerated at the Somerset County Jail, and

faced additional criminal charges as a result. Id. at 28-29.


3
  Mother devotes a significant portion of her brief to discussing the evidence
in this matter in relation to Section 2511(a)(1). However, as noted supra,
Mother’s parental rights were terminated under Section 2511(a)(2) only.
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     Mother testified that she has been a drug addict for about 10 years,

since she was 16 years old, and that her drug of choice is heroin. Id. at 78-

79. Mother claimed that, after her release in 2011, she “came to see [Child]

and visit him as much as I could ….” Id. at 51. According to Mother, Child

“was with me … between four and five[] days a week” from April of 2011,

until Mother relapsed in November of 2012. Id. at 52-53, 56-57. Mother

also stated that Child was with her “at least five days a week.” Id. at 57.

Mother explained that she most recently was incarcerated on December 7,

2012, that she currently is serving two concurrent 2½-5 year sentences of

incarceration, and that her minimum sentence date is in April of 2015. Id.

at 54, 77. Mother was not sure what her maximum sentence date is, but

she believed it to be in 2016.        Id. at 77-78.   Mother noted that her

incarceration will be followed by a special probation sentence with a

maximum sentence date in 2026.4 Id. at 77.

     Mother further testified that she is attending drug treatment while

incarcerated, and that she is “getting ready to start the motivational boot

camp which is something I’ve never ever done before, and that will also give

me the opportunity to be able to be home sooner but start out in a …

different town ….”   Id. at 76, 90.    Mother hoped to be “back out on the


4
  Mother noted that, during her current incarceration, she has allowed Great-
Aunt to withdraw money from a savings account in order to buy things for
Child. N.T., 12/11/2014, at 66 (“[I]f he needed a bike or something like
that, she would take the money from my savings account and get him a
bike.”).
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street” by Thanksgiving of 2015. Id. at 80. However, Mother conceded that

“it will take a while” until she is able to take care of Child. Id. at 71. She

noted that “it’s going to be hard to get a job with my criminal record, … but

it’s been done, and I can do it.” Id. at 90.

      Accordingly, the record supports the finding of the orphans’ court that

Mother’s parental incapacity has caused Child to be without essential

parental care, control, or subsistence, and that Mother cannot, or will not,

remedy this incapacity. Mother is incarcerated, and it is not clear when, if

ever, Mother will be able to care for Child. While Mother contends that her

parental incapacity will be remedied when she is released from incarceration,

Mother’s   argument    fails   to   address    the   underlying   cause   of   her

incarcerations. Specifically, Mother has a lengthy history of drug addiction

that she has been unable to remedy.           It was reasonable for the court to

conclude that Mother may again relapse. In the event of a relapse, there is

a considerable risk, if not a likelihood, that Mother will be sentenced to

another period of incarceration.

      We also reject Mother’s contention that she provided Child with

parental care, control, or subsistence by placing Child in the care of Great-

Aunt and Great-Uncle, and by allowing Great-Aunt and Great-Uncle to use

money from her savings account. Tellingly, Mother cites no authority for the

proposition that these actions are sufficient to avoid termination under

Section 2511(a)(2).     To the contrary, this Court has emphasized that


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“‘[p]arental 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

E.A.P., 944 A.2d 79, 83 (Pa. Super. 2008) (quoting In re B.,N.M., 856 A.2d

847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005)). No

relief is due.

      We next consider whether the trial court abused its discretion by

findings that section 2511(b) supports termination. We have discussed our

analysis under section 2511(b) as follows.

      Section 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. As this Court has
      explained, Section 2511(b) does not explicitly require a bonding
      analysis and the term ‘bond’ is not defined in the Adoption Act.
      Case law, however, provides that analysis of the emotional bond,
      if any, between parent and child is a factor to be considered as
      part of our analysis. While a parent’s emotional bond with his or
      her child is a major aspect of the subsection 2511(b) best-
      interest analysis, it is nonetheless only one of many factors to be
      considered by the court when determining what is in the best
      interest of the child.

             [I]n addition to a bond examination, the trial court
             can equally emphasize the safety needs of the child,
             and should also consider the intangibles, such as the
             love, comfort, security, and stability the child might
             have with the foster parent. Additionally, this Court
             stated that the trial court should consider the
             importance of continuity of relationships and whether
             any existing parent-child bond can be severed
             without detrimental effects on the child.




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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and

citations omitted).

      Here, the orphans’ court found that it would meet the needs and

welfare of Child to remain in the care of Great-Aunt and Great-Uncle, where

Child is thriving. Orphans’ Court Opinion, 12/29/2014, at 10 (unnumbered

pages). The court further concluded that there was “no evidence to support

an argument that there is a sufficient parent-child bond between Mother and

the Child such that [] he would be harmed by a severance of the parental

relationship.” Id. Mother contends that she has a bond with Child and, if

this bond is severed, “the damage that will be caused will have some effect

in the child’s life.” Mother’s brief at 22-23. Mother argues that it would be

best to leave Child in the care of Great-Aunt and Great-Uncle until she is

able to remedy her parental incapacity. Id.

      Again, we conclude that Mother is not entitled to relief.   Great-Aunt

testified that she and Great-Uncle are caring for Child and providing for his

needs, that Child is doing well in school, and that he is “very happy.” N.T.,

12/11/2014, at 34-37, 40-41, 44-45, 110-11. Great-Aunt and Great-Uncle

have never described themselves to Child as his mother and father, and

Child usually refers to them by their first names.     Id. at 21, 35, 102.

However, Child sometimes refers to Great-Aunt and Great-Uncle as his

“mom” and “dad” while speaking to his friends. Id. at 35-36. Great-Aunt


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explained that Child knows Mother is his mother and refers to her as “mom,”

and that Child sometimes talks about Mother, but “[n]ot a whole lot.” Id. at

20, 22, 37, 102.

      Great-Aunt further stated that Mother writes to Child, sends him cards,

and calls him on the phone. Id. at 22, 31-32, 35, 99. When Mother calls

Child, Child will be excited to talk to Mother, but will only be interested in

speaking with her for short periods of time.   Id. at 42, 102.    Sometimes,

Great-Aunt will show Child a card Mother sent him, and Child will be

uninterested.   Id. at 102.   Great-Aunt indicated that it has been “over a

year” since Child has asked when Mother is coming home. Id. at 113. Both

Great-Aunt and Great-Uncle testified that Mother and Child had a “good”

relationship prior to Mother most recent incarceration.      Id. at 93, 126.

However, Great-Uncle explained that he recently tried to speak to Child

about Mother and that “I could tell it upset him, and … he didn’t want to

hear about it.” Id. at 127.

      Mother agreed that she calls Child on the phone and sends him letters

and pictures while incarcerated. Id. at 65-66. Mother also stated that she

had a friend mail toys to Child.       Id. at 66.    Mother explained that,

sometimes, Child “doesn’t really want to talk much” on the phone, and that,

other times, Child will be “really excited to tell me what was going on.” Id.

at 67.   Mother stated that she and Child became “really close” during the




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time Mother last was out of jail, and that she wants to “continue building the

relationship that I have with my son.” Id. at 68, 75.

      Mother’s mother (Maternal Grandmother) testified that Mother and

Child spent “a lot of time together” prior to Mother’s most recent

incarceration, that they “get along perfectly,” and that they “mean

everything to each other.”    Id. at 150.    However, Maternal Grandmother

admitted that there are times when Child “doesn’t want to talk” when Mother

calls him on the phone, “[s]o he’ll say hi, bye, and that’s pretty much it.

Then there’s other times where he’ll talk the whole 20 minutes that she can,

you know, talk. And … he’ll say, hey, call me back. So she would hang up

and call back again.” Id. at 155. Maternal Grandmother stated that Child

“definitely” recognizes Mother as his Mother, that Child loves Mother, and

that Child talks about Mother “[s]ometimes.” Id. at 155, 158.

      Thus, the record supports the finding of the orphans’ court that Child is

thriving in the care of Great-Aunt and Great-Uncle, who have cared for Child

for most of his life, and that it would serve the needs and welfare of Child to

be adopted.      While Child maintains a relationship with Mother, this

relationship has been limited by the circumstances of Mother’s incarceration.

Further, under the facts of the instant case, it is clear that any benefits that

Child’s relationship with Mother might provide are outweighed by Mother’s

parental incapacity, and by Child’s need for permanence and stability. See

C.D.R., 111 A.3d at 1220 (concluding that the appellant mother’s bond with


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C.D.R was outweighed by the mother’s “repeated failure to remedy her

parental incapacity,” and by C.D.R.’s need for permanence and stability).

      Accordingly, because we conclude that the orphans’ court did not

abuse its discretion by terminating Mother’s parental rights to Child

involuntarily, we affirm the order of the orphans’ court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2015




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