J-S35015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF C.L.V., A MINOR                 IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


APPEAL OF: S.H., MOTHER
                                                        No. 254 WDA 2017


                   Appeal from the Order November 23, 2016
                In the Court of Common Pleas of McKean County
                      Orphans' Court at No(s): 42-16-0112


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                  FILED JUNE 28, 2017

        S.H. (“Mother”) appeals from the order, entered in the Court of

Common Pleas of McKean County, terminating her parental rights to C.L.V.,

(DOB: August, 2013).1        After our review, we affirm.

        At birth, C.L.V. tested positive for opiates. Bucks County Children and

Youth Services (“Bucks CYS”) placed C.L.V. with paternal aunt and her

husband (“Petitioners”), who reside in Kane, McKean County.          Mother had

supervised visits for approximately two months.

        McKean County Children and Youth Services (“McKean CYS”) filed a

dependency petition on November 15, 2013. The court adjudicated C.L.V.

dependent on November 27, 2013, when she was three months old.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 The court also terminated Father’s parental rights. His separate appeal is
docketed at 54 WDA 2017.
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Thereafter, Mother left the Kane area, and McKean CYS lost touch with her.

Mother and Father were never married; both have substance abuse and

criminal histories.    C.L.V. has lived with, and has been exclusively parented

by, Petitioners, since she was four days old.

       On May 20, 2016, Petitioners filed a petition to terminate Mother’s

parental rights. See 23 Pa.C.S.A. § 2512(a)(3).2      The court held a hearing

on August, 17, 2016. Mother, who was incarcerated in state prison at the

time, was not present, but she participated by telephone. Mother’s counsel

was present in court.




____________________________________________


2
    § 2512. Petition for involuntary termination

       (a) Who may file.--A petition to terminate parental rights with
       respect to a child under the age of 18 years may be filed by any
       of the following:

          (1) Either parent when termination is sought with respect
          to the other parent.

          (2) An agency.

          (3) The individual having custody or standing in loco
          parentis to the child and who has filed a report of intention
          to adopt required by section 2531 (relating to report of
          intention to adopt).

          (4) An attorney representing a child or a guardian ad litem
          representing a child who has been adjudicated dependent
          under 42 Pa.C.S. § 6341(c) (relating to adjudication).

    23 Pa.C.S.A. § 2512(a)(3) (emphasis added).



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      Mother testified that she had supervised visits with C.L.V. for

approximately two weeks, from mid-September 2013 to October 2013, that

she   was   struggling   with   addiction   during   that   time,   that   she   was

incarcerated in November 2013 for four days, and then moved to Bucks

County to live with her sister.      Following a parole violation, Mother was

sentenced in Bucks County to 11½ to 22 months, served approximately 12

months, and stated that during 2014, the only period of time she was not

incarcerated was from January 1 to January 5.         N.T. Hearing, 8/17/16, at

59-62.

      Mother also testified that after she was released from incarceration, in

January 2015, she moved in with her sister in Bucks County.            She moved

back to McKean County on May 26, 2015. Id. at 65. She also testified that

when she moved back to McKean County, her visitation requests were not

granted because Petitioner (Paternal Aunt), did not “feel comfortable with

it[,]” and that Petitioners “were scared and just nervous about the whole

situation.” Id. at 67-68. Mother explained that the “situation” was that she

“got into legal trouble” and was “incarcerated July 27 of 2015.” Id. at 68.

Mother stated that she is addicted to opiates and alcohol and that she has

struggled with addiction for the last eight years. Id. at 69-70, 79. She also

stated that during her current incarceration, she participated in a six-month

drug and alcohol program, from which she graduated in June 2016, and that

she expected to be released in September 2016, and from there move on to

another treatment program in Philadelphia. Id. at 70.

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       Finally, Mother conceded that she has not taken steps to maintain a

relationship or bond with C.L.V., id. at 71, 80, that she knew Petitioners had

custody of C.L.V. and did not attempt to modify that order or seek custody

of C.L.V., and that C.L.V. did not know her voice. Id. at 73, 75, 77. Mother

also acknowledged that for most of C.L.V.’s life, Mother has had addiction

issues, and she testified that she was not sure where she would live upon

her release and completion of treatment programs because she has three

children in Bucks County.3 Id. at 75.

       Following the hearing, the court granted the petition. The court found

that that McKean CYS had established by clear and convincing evidence that

termination was proper under 23 Pa.C.S.A. § 2511(a)(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 to failed to perform

parental duties.”).       The court also found that termination best served

C.L.V.’s needs and welfare. See 23 Pa.C.S.A. § 2511(b).

       The order was docketed on November 23, 2016; a notation on the

docket indicates that notice of the order was sent to the parties on

November 29, 2016. Mother did not file a timely appeal. On January 30,

2017, Mother filed a motion for leave to file appeal nunc pro tunc, along with

____________________________________________


3
 Mother shares custody of her 8- year-old son with the boy’s father. Her
other two children have been adopted. N.T. Hearing, 8/17/16, at 75.



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her notice of appeal.       The court granted Mother’s motion on February 7,

2017.

        Mother raises two issues for our review:

           1. Whether the trial court abused its discretion in granting
              petitioner’s petition to terminate Mother’s parental rights
              when Mother demonstrated she was making all available
              efforts to maintain a place of importance in [C.L.V.’s] life
              while incarcerated?

           2. Whether trial counsel was ineffective for failing to file a
              brief on Mother’s behalf?

Appellant’s Brief, at 4.

        When    reviewing    an   order   granting   a   petition   for   involuntary

termination of parental rights, we apply an abuse of discretion standard.

Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).

        [O]ur standard of review requires an appellate court 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. As has been
        often stated, an abuse of discretion does not result merely
        because the reviewing court might have reached a different
        conclusion. Instead, a decision may be reversed for an abuse of
        discretion     only    upon     demonstration         of    manifest
        unreasonableness, partiality, prejudice, bias, or ill-will.

Id. (citations omitted).     Further, when reviewing a petition for involuntary

termination of parental rights, the trial court’s initial focus is on the parents.

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

        The party seeking termination must prove by clear and
        convincing evidence that the parent’s conduct satisfies the
        statutory grounds for termination delineated in [s]ection


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      2511(a). Only if the court determines that the parent’s conduct
      warrants termination of his or parental rights does the court
      engage in the second party of the analysis pursuant to [s]ection
      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.

Id.

      When separated from her child, it is incumbent upon the parent to

maintain communication and association with her child. “This requires an

affirmative demonstration of parental devotion, imposing upon the parent

the duty to exert [her]self, to take and maintain a place of importance in the

child’s life.” In re G.P.-R., 851 A.2d 967, 977 (Pa. Super. 2004). In the

case of an incarcerated parent, this Court has held:

      [T]he fact of incarceration does not, in itself, provide grounds for
      the termination of parental rights. However, a parent’s
      responsibilities are not tolled during incarceration. The focus is
      on whether the parent utilized resources available while in prison
      to maintain a relationship with his . . . child. An incarcerated
      parent is expected to utilize all available resources to foster a
      continuing close relationship with his . . . children.

      Where a non-custodial parent is facing termination of his . . .
      parental rights, the court must consider the noncustodial
      parent’s explanation, if any, for the apparent neglect, including
      situations in which a custodial parent has deliberately created
      obstacles and has by devious means erected barriers intended to
      impede free communication and regular association between the
      noncustodial parent and his . . . child. Although a parent is not
      required to perform the impossible, he must act affirmatively to
      maintain his relationship with his child, even in difficult
      circumstances. A parent has the duty to exert himself, to take
      and maintain a place of importance in the child’s life.



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        Thus, a parent’s basic constitutional right to the custody and
        rearing of his . . . child is converted, upon the failure to fulfill his
        . . . parental duties, to the child's right to have proper parenting
        and fulfillment of his . . . potential in a permanent, healthy, safe
        environment. A parent cannot protect his parental rights by
        merely stating that he does not wish to have his rights
        terminated.

In re B., N.M., 856 A.2d 847, 855-56 (Pa. Super. 2004) (internal citations

and quotation marks omitted).

        Here, the trial court found that Mother had no significant contact with

C.L.V.    In fact, Mother had not seen C.L.V. since July 2015, ten months

before the petition was filed. On that occasion, Mother had a “momentary

and serendipitous” encounter with C.L.V. at a grocery store. See Trial Court

Findings of Fact, 11/23/16, at 2; N.T. Termination Hearing, 8/17/16, at 31-

32. Prior to that, Mother’s last physical contact with C.L.V. was in October

2013.     N.T. Termination Hearing, 8/17/16, at 32.           The court found that

Mother did not send C.L.V. cards, gifts or letters, and that she exhibited very

little effort in attempting to establish a relationship with C.L.V.         See Trial

Court Findings of Fact, 11/23/16, at 2; N.T. Termination Hearing, 8/17/16,

at 28-29, 42-44. The court also determined Petitioners, who intend to adopt

C.L.V., have been the exclusive caregivers and sources of support for C.L.V.,

and that Petitioners have consistently provided for C.L.V.’s developmental,

physical and emotional wellbeing. Trial Court Opinion, 11/23/16, at 4; N.T.

Termination Hearing, 8/17/16, at 32-33, 47-48.

        Our comprehensive review of the record supports the court’s findings.

McKean CYS established by clear and convincing evidence that, for at least

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six months prior to the filing of the petition, Mother failed to perform

parental duties. Acknowledging the difficult circumstances, it remains quite

clear that Mother has made no meaningful, genuine or consistent efforts to

establish a relationship with C.L.V.           See In re T.D., 949 A.2d 910 (Pa.

Super.    2008).     Accordingly,     termination    was   proper   under   section

2511(a)(1).

       With respect to section 2511(b), the evidence established that C.L.V.

is doing well in Petitioners’ care, that Petitioners are meeting C.L.V.’s needs,

and that they intend to adopt her. The evidence also established that there

is no bond between Mother and C.L.V.; Mother acknowledged as much, and

she admitted that C.L.V. did not even know her voice. There is no bond to

be broken. Clearly, termination of parental rights would not adversely affect

C.L.V.   The court, therefore, properly determined that termination was in

C.L.V.’s best interests pursuant to section 2511(b). See In re K.Z.S., 946

A.2d 753, 763 (Pa. Super. 2008) (“In cases where there is no evidence of

any bond between the parent and child, it is reasonable to infer that no bond

exists.”).4

       Finally, Mother argues her counsel was ineffective for failing to file a

supplemental brief on her behalf following the termination hearing. Mother



____________________________________________


4
  We note that the guardian ad litem a filed a brief in support of the order
granting termination.



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claims that failure to submit this brief prejudiced her.        This claim is

meritless.

      In the context of a termination proceeding, . . . an allegation of
      ineffectiveness of counsel on appeal would result in a review by
      this Court of the total record with a determination to be made
      whether on the whole, the parties received a fair hearing, the
      proof supports the decree by the standard of clear and
      convincing evidence, and upon review of counsel’s alleged
      ineffectiveness, any failure of his stewardship was the cause of a
      decree of termination. Mere assertion of ineffectiveness of
      counsel is not the basis of a remand or rehearing, and despite a
      finding of ineffectiveness on one or more aspects of the case, if
      the result would unlikely have been different despite a more
      perfect stewardship, the decree must stand.

In re Adoption of T.M.F., 573 A.2d 1035, 1040 (Pa. Super. 1990). The

party alleging ineffective assistance of counsel in a termination of parental

rights case must show by clear and convincing evidence that it is more likely

than not that the result of the proceeding would have been different, absent

the alleged ineffectiveness. In re K.D., 871 A.2d 823, 829 (Pa. Super.

2005).

      Prior to the hearing, on July 26, 2016, the court appointed counsel for

Mother. Counsel represented Mother at the hearing, and conducted direct

examination and cross-examination. Mother received a fair hearing and the

record fully supports the court’s termination order. Mother’s claim that, had

counsel filed a supplemental brief the result would have been different, is an

indefensible position in light of the record before us. In re K.D., supra.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2017




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