J-S06017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: D.V.M.R., A MINOR                       IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: L.W., MOTHER

                                                    No. 1258 MDA 2015


                  Appeal from the Order Entered June 22, 2015
                 In the Court of Common Pleas of Centre County
                         Orphans' Court at No(s): 3956


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                           FILED MARCH 04, 2016

       Appellant, L.W. (Mother) appeals from the June 22, 2015 order

involuntarily terminating her parental rights to her minor son, D.V.M.R.,

born in March 2011.1 After careful review, we affirm.2

       The orphans’ court summarized the factual history of this matter as

follows.

              Prior to [D.V.M.R.’s] birth, since October, 2009,
              [Centre County Children and Youth Services (CYS)]
              had been providing services to alleviate personal
              crises [Mother] was experiencing. She was using
____________________________________________


1
  The parental rights of D.V.M.R.’s Father, G.R. (Father), were terminated by
the same order.       The disposition of Father’s appeal is by separate
memorandum at docket number 1266 MDA 2015.
2
  The Guardian Ad Litem has filed a brief in support of the involuntary
termination decree.



*Former Justice specially assigned to the Superior Court.
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           illegal drugs and failing to provide appropriate
           supervision for her children. She tested positive in
           multiple drug screens for cocaine, morphine and
           OxyContin without a proper prescription. She was
           charged with driving under the influence on two
           occasions. [Father] is [D.V.M.R.’s] natur[al] father.
           [Mother] and [Father] share another child, [N.R.],
           [D.V.M.R.’s] brother, born [in June] 2008, eight
           years old. [Mother] has an older daughter, [S.], who
           is [D.V.M.R.’s] half-sibling. [S.] was adjudicated
           dependent by Order entered in December, 2014.

                  CYS was involved with [Mother] and [Father]
           concerning their older son, [N.R.].        [N.R.] was
           adjudicated dependent in October, 2009. [Father]
           was incarcerated at the time [N.R.] was found
           dependent.     Family Intervention Cris[i]s Services
           (FICS) was contacted to take reunification steps with
           [N.R.] and the efforts began with [Mother] in
           November, 2009 and for [Father] in March, 2010,
           when he was released from Blair County Correctional
           Facility. The reunification efforts were not successful
           as [Mother] had no housing, did not participate in
           lifestyle checks with FICS, and did not schedule
           sessions with reunification counselors. In August,
           2010, there was no progress in reunification and on
           December 30, 2010, reunification services ended as
           the parents failed to meet the required goals.

                  When [D.V.M.R.] was born in March, 2011,
           new services were provided by FICS since [D.V.M.R.]
           was in the home with the parents and reunification
           efforts were again commenced for [N.R.] There was
           progress toward reunification and things went
           relatively well. The reunification efforts ended when
           [Mother] was incarcerated in December, 2011.
           [Father] had a warrant out for his arrest at that time
           and his whereabouts were unknown. [Mother] was
           to be incarcerated until February, 2014, and [Father]
           was incarcerated through September, 2012.

Orphans’ Court Opinion, 6/22/15, at 1-2.




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       On March 10, 2014, CYS filed a petition to involuntarily terminate the

parental rights of Mother and Father.            A termination hearing was held on

June 9, 2014, July 30, 2014, and October 31, 2014, during which the

orphans’ court heard the testimony of former CYS caseworker, Lindsay

Schreffler; D.V.M.R.’s foster father, J.F. (Foster Father); D.V.M.R.’s foster

mother, M.J.F. (Foster Mother); CYS caseworker, Tammi Eddy; Mother’s

maternal     aunt,    M.M.-K.;      Mother;    Father’s   mother,   P.K.   (Paternal

Grandmother); and Father.           On November 24, 2014, before the orphans’

court ruled on the termination petition, CYS filed a petition to reopen the

record in order to present new evidence concerning ongoing drug use by

Mother. The orphans’ court granted the petition, and additional testimony

was heard on January 2, 2015.            Specifically, the orphans’ court heard the

testimony of psychiatrist, Elmer Cupino, M.D.; and CYS caseworker, Brittany

Werner. On June 22, 2015, the orphans’ court entered its order terminating

Mother’s parental rights to D.V.M.R. Mother timely filed a notice of appeal

on July 21, 2015.3

____________________________________________


3
  Mother failed to file her concise statement of errors complained of on
appeal until the following day, July 22, 2015, in contravention of
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). We have accepted
Mother’s late filing in reliance on our decision in In re K.T.E.L., 983 A.2d
745, 748 (Pa. Super. 2009) (holding that the appellant’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). Additionally, on August 17, 2015, the
orphans’ court filed an opinion adopting its June 22, 2015 opinion as its Rule
1925(a) opinion.



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      On appeal, Mother raises the following issues for our review.

            1) [Whether t]he [orphans’] court erred in
            terminating    the   parental  rights  of Mother:
            Insufficient evidence was presented to demonstrate
            by a clear and convincing standard that the issues
            which prompted [CYS’s] involvement continued to
            exist at the time of the hearing and could not or
            would not be remedied by Mother[?]

            2) [Whether t]he [orphans’] court erred in reopening
            the record on January [2], 2015, two months after
            the presentation of evidence had been completed
            and allowing the agency to offer additional evidence
            not within their possession or even in existence at
            the time the Petition to Terminate was filed[?]

            3) [Whether t]he [orphans’] court erred in denying
            Mother’s Motion for Psychological Exam of [D.V.M.R.]
            to determine the impact termination would have on
            the child relative to his relationship with and bond to
            an older sibling[?]

            4) [Whether t]he [orphans’] court erred in failing to
            consider the impact termination would have on the
            bond between the minor child and his older sibling[?]

            5) [Whether t]he [orphans’] court erred in relying on
            the testimony of a caseworker to opine on the
            impact termination would have on the minor child
            relative to his parental bond with Mother[?]

Mother’s Brief at 1-2.

      We consider Mother’s claims mindful of our well-settled 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 courts
            review to determine if the trial court made an error

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            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).

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

pursuant to Sections 2511(a)(2), (5), (8), and (b). We need only agree with

the orphans’ court as to any one subsection of Section 2511(a), as well as


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Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.

Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here,

we analyze the orphans’ court’s decision to terminate under Sections

2511(a)(2) and (b), which provide as follows.

           § 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.

                                      …

           (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), (b).


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

terminating Mother’s parental rights pursuant to Section 2511(a)(2). “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), citing In re Adoption of S.P., 47 A.3d 817 (Pa. 2012).

        Instantly, the orphans’ court found that Mother’s incapacity, abuse,

neglect, or refusal, has caused D.V.M.R. to be without essential parental

care.     Orphans’ Court Opinion, 6/22/15, at 9.           The orphans’ court

emphasized Mother’s “criminal issues, frequent incarceration, drug abuse,

and lack of a stable home and employment,” and concluded that she will not

be able to remedy these problems. Id.

        In her first and second issues on appeal, Mother argues that she is

presently capable of caring for D.V.M.R., and that none of the issues that

prevented her from caring for D.V.M.R. in the past continue to exist.

Mother’s Brief at 6-9.    Mother concedes that evidence was presented on

January 2, 2015, which indicated that she was continuing to use illegal


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drugs. Id. at 10. However, Mother insists that the orphans’ court erred by

reopening the record and considering this evidence.           Id. at 10-11.

According to Mother, “[t]o allow [CYS] to re-open the record any time more

damning evidence is available would place parents in an impossible

situation, whereby they would be burdened with defending allegations in

perpetuity.” Id. at 10.

        After a thorough review of the record, we conclude that the orphans’

court did not abuse its discretion by involuntarily terminating Mother’s

parental rights to D.V.M.R.    During the termination hearing, on July 30,

2014, Mother testified that she was incarcerated from December 9, 2011,

until February 2, 2014. N.T., 7/30/14, at 29, 43. Mother acknowledged that

she has a lengthy criminal history, and that she has been incarcerated on

several prior occasions, including periods of incarceration in 2001, 2002, and

2010.      Id. at 66-74.     Since being released from her most recent

incarceration, Mother reported that has she been working as a housekeeper

at a hotel, and that she rented a townhouse. Id. at 12, 14. With respect to

her illegal drug use, Mother admitted that she continued to use heroin until

she found out that she was pregnant with D.V.M.R. Id. at 48-49. However,

Mother insisted that she has been drug-free for about four years, and that

she would like to go back to school and become a drug and alcohol

counselor. Id. at 14-16. Mother noted that she is on probation, and that




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she has been drug tested by her probation officer.        Id. at 30.   Mother

reported that she has passed all of her drug tests. Id.

       On January 2, 2015, CYS presented the testimony of caseworker,

Brittany Werner. Ms. Werner testified that she received a call on November

9, 2014, indicating that there was “a child in the ER department that needed

somewhere to go, someone to stay with because [his] mother, [Mother],

was going to be admitted to the psychiatric department.” N.T., 1/2/15, at

55.   Ms. Werner spoke with Mother, who indicated that she recently had

used cocaine, and that she used the cocaine “as an upper since her Adderall

was a downer for her.” Id. at 56. It was Ms. Werner’s understanding that

Mother also tested positive for cocaine at that time.4 Id. Ultimately, Mother

was not admitted to the psychiatric department. Id. at 58.

       Given the foregoing, the record supports the conclusion of the

orphans’ court that Mother is incapable of providing D.V.M.R. with essential

parental care, control, or subsistence necessary for D.V.M.R.’s physical or

mental well-being.        Moreover, Mother cannot, or will not, remedy her

parental incapacity. Despite Mother’s contentions to the contrary, it is clear

that the circumstances which prevented her from caring for D.V.M.R.

continue to exist.      Mother continues to engage in illegal activity, namely

____________________________________________


4
  CYS presented a copy of Mother’s drug test results, which showed a
positive screen for cocaine metabolite on November 9, 2014.      See
Petitioner’s Exhibit 2, 1/2/15.



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drug use, which both risks the safety of D.V.M.R., and may result in

additional periods of incarceration.      While Mother insists that it was

somehow unfair or improper for the orphans’ court to reopen the record and

consider the evidence of her recent drug use, Mother fails to cite any

authority which supports this proposition. See generally Mother’s Brief at

10-11. Thus, we deem this claim waived. See In re W.H., 25 A.3d 330,

339 n.3 (Pa. Super. 2011) (“where an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived[]”), appeal denied, 24 A.3d 364 (Pa. 2011), quoting In re A.C., 991

A.2d 884, 897 (Pa. Super. 2010).

      We next consider whether the orphans’ court abused its discretion by

terminating Mother’s parental rights pursuant to Section 2511(b). 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.




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                  [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.

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 terminating the parental rights of

Mother and Father would best serve the needs and welfare of D.V.M.R.

Orphans’ Court Opinion, 6/22/15, at 10. The orphans’ court explained that it

considered the bond between D.V.M.R. and his parents, and concluded that

D.V.M.R. would not suffer emotionally if parental rights are terminated. Id.

The orphans’ court observed that D.V.M.R. shared a stronger bond with his

foster parents. Id. Finally, the orphans’ court noted that it would be best

for D.V.M.R. to continue residing with his foster parents, even though this

will prevent D.V.M.R. from residing with his brother N.R.     Id. at 11.   The

orphans’ court expressed hope that D.V.M.R.’s foster parents would work

with N.R.’s foster parents and with CYS to foster a relationship between

D.V.M.R. and N.R. Id.




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      In her third, fourth, and fifth issues on appeal, Mother argues that it

was improper for the orphans’ court to terminate her parental rights without

first conducting a bonding evaluation of D.V.M.R. and his brother N.R., and a

bonding evaluation of D.V.M.R. and Mother.          Mother’s Brief at 11-13.

Mother asserts that there was “no competent testimony” concerning

D.V.M.R.’s bond with Mother, and that the orphans’ court erred by relying on

the testimony of the CYS caseworker that D.V.M.R. would not be harmed if

Mother’s parental rights were terminated.    Id. at 12.   Mother insists that

D.V.M.R. is strongly bonded with both her and N.R. Id. at 12-13.

      We again discern no abuse of discretion.      CYS caseworker, Tammi

Eddy, testified that she did not believe that D.V.M.R. would suffer emotional

harm if the parental rights of Mother and Father were terminated.       N.T.,

6/9/14 (Part 2), at 100.      Ms. Eddy explained that she has attended

approximately four visits between D.V.M.R. and his parents. Id. at 116-17.

In addition, Ms. Eddy has transported D.V.M.R. back from visits. Id. at 95-

96.   While being driven back after a visit, D.V.M.R. frequently asks when

they are going to be home, and says, “I want Mommy [J.], I want my

mommy,” meaning Foster Mother.         Id. at 96.     In contrast, Ms. Eddy

described an incident during which she arrived at the foster home, and

D.V.M.R. mistakenly believed that she was there to take him to a visit with

his parents. Id. at 96. D.V.M.R. “ran upstairs screaming [‘]I don’t want to




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go, I don’t want to go.[’]        He then started throwing books at the [foster

parents’] daughter.”5 Id. at 96-97.

       Concerning D.V.M.R.’s bond with his brother N.R., Foster Mother

testified that D.V.M.R. and N.R. initially were placed together in her home.

Id. at 39-40. However, N.R. engaged in numerous inappropriate behaviors,

including acts of violence against D.V.M.R..       Id. at 41-43.   Foster Mother

and Foster Father struggled to ensure D.V.M.R.’s safety, and Foster Mother

called CYS asking for assistance. Id. at 40, 42, 52. As a result, N.R. was

sent to be evaluated at a facility called Kids Peace. Id. at 53-54. During

N.R.’s time at Kids Peace, it was determined that N.R. should not reside with

other children.     Id. at 56.     Thus, N.R. was placed in the care of Paternal

Grandmother. Id. Foster Mother noted that N.R. was present during some

of D.V.M.R.’s visits with Mother and Father, and that D.V.M.R. is more willing

to attend visits if he knows N.R. will be there. Id. at 49-50, 61-62. Foster

Mother indicated that she would support D.V.M.R. and N.R. maintaining a

relationship, even after she and Foster Father adopt D.V.M.R.. Id. at 62.

       Thus, the record supports the conclusion of the orphans’ court that it

would best serve D.V.M.R.’s needs and welfare to terminate Mother’s

parental rights. D.V.M.R. was removed from Mother’s care in December of

____________________________________________


5
  While describing this incident, Ms. Eddy used N.R.’s first name rather than
D.V.M.R.’s first name. However, it is clear from the context that she was
referring to D.V.M.R..



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2011, when he was about nine months old. D.V.M.R. was placed with his

current foster parents in March of 2012, and has resided with them

continuously since that time. N.T., 6/9/14 (Part 1), at 34, 88. While Mother

suggests that the orphans’ court should have procured a bonding evaluation,

it is well-settled that a court in a termination proceeding “is not required by

statute or precedent to order a formal bonding evaluation be performed by

an expert.” In re K.K.R.-S., 958 A.2d 529, 534 (Pa. Super. 2008) (citation

omitted). The orphans’ court was well within its discretion when it relied on

the testimony of Ms. Eddy, among others, to conclude that D.V.M.R. has no

significant bond with Mother, and that D.V.M.R. would not suffer emotional

harm if Mother’s parental rights were terminated.

      Moreover, it was proper for the orphans’ court to conclude that

D.V.M.R.’s relationship with N.R. should not prevent Mother’s parental rights

from being terminated. While Mother suggests that the orphans’ court failed

to consider the impact that terminating Mother’s parental rights would have

on this sibling relationship, the orphans’ court’s opinion belies this assertion.

We agree with the orphans’ court that whatever bond the brothers share is

outweighed in the instant matter by other concerns, including D.V.M.R.’s

bond with his foster parents, D.V.M.R.’s need for permanence and stability,

and Mother’s ongoing drug use.        See In re R.N.J., 985 A.2d 273 (Pa.

Super. 2009) (affirming the orders terminating the appellant’s parental

rights to two of her children, and changing the permanency goals of two of


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the appellant’s other children to permanent legal custody, based on the

unique circumstances of each child).           As observed by the orphans’ court,

Foster Mother indicated during the termination hearing that she would

support D.V.M.R. and N.R. maintaining a relationship, even after she has

adopted D.V.M.R..6

       Based on the foregoing, we conclude that the orphans’ court did not

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

D.V.M.R.     See T.S.M., supra.         Accordingly, we affirm the June 22, 2015

order of the orphans’ court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




____________________________________________


6
  Similarly, Foster Father stated, “I would make sure that those boys stayed
in contact with each other, seen [sic] each other. I have no problem with
them communicating with each other…. I assure you that … they will be in
contact with each other.” N.T., 6/9/14 (Part 2), at 26.



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