In Re: Adopt of: A.H., Appeal of: C.W.

J-A03028-21

                                               

  IN RE: ADOPTION OF A.H.                               :   IN THE SUPERIOR COURT OF
                                                        :        PENNSYLVANIA
                                                        :
  APPEAL OF: C.W., MOTHER                               :
                                                        :
                                                        :
                                                        :
                                                        :
                                                        :   No. 1032 MDA 2020


                    Appeal from the Decree Entered August 4, 2020,
                 in the Court of Common Pleas of Cumberland County,
                      Orphans' Court at No(s): 046-ADOPT-2020.


BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY KUNSELMAN, J.:                                         FILED MARCH 03, 2021

        In this matter, C.W. (Mother) appeals the orphans’ court decree

terminating her rights to 11-year-old son, A.H. (Child), pursuant to the

Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). 1 Mother

also challenges the decision of the dependency court to change the goal of the

proceedings from reunification with Mother to adoption by the foster parent.

After careful review, we conclude Mother waived the goal change issue, and

we affirm the termination decree.

        The relevant factual and procedural history is as follows. The family’s

involvement with Cumberland County Children and Youth Services (Agency)

began in Summer 2009, after an incident where the two-month-old Child was

injured when Mother attacked the Maternal Grandmother.                          Child was


____________________________________________
1 L.C. (Father) consented to the termination of his parental rights.
J-A03028-21



adjudicated dependent in September 2009 and placed with the Maternal

Grandmother.      After Mother received mental health treatment, Child was

ultimately returned to Mother’s care and the case apparently remained

dormant for nearly ten years.

      Then, in March 2018, the court removed Child from Mother’s care when

Mother was involuntarily committed for mental health treatment. Mother was

discharged on April 4, 2018, but she did not comply with the recommendation

that she seek further treatment. The court adjudicated Child dependent on

April 23, 2018.

      The Agency developed a permanency plan for Mother, which was revised

multiple times throughout the dependency case. However, Mother’s primary

goals were: obtain mental health treatment; parenting; visitation; and to

attain and maintain a safe environment for Child. The court placed Child in

foster care following his removal; but we note Child was not placed with his

pre-adoptive foster father until April 15, 2019. Child has resided there since.

      In June 2020, the Agency petitioned the dependency court to change

Child’s goal from reunification to adoption; the Agency also petitioned the

court to involuntarily terminate Mother’s rights. The court held hearings on

July 14 and 28, 2020, and ultimately granted the Agency’s petitions.        The

court entered the termination decree on August 4, 2020.

      Mother timely-filed this appeal. She presents the following issues for our

review, which we restate for clarity:




                                        -2-
J-A03028-21


                 1. Was the evidence presented sufficient for the trial
                    court to find, by clear and convincing evidence, [that
                    termination of Mother’s parental rights was proper]
                    under the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1),
                    (2), (5), and (8)?

                 2. Was the evidence sufficient for the trial court to find,
                    by clear and convincing evidence, that termination
                    best serves [Child’s] physical and emotional needs
                    and welfare under 23 Pa.C.S.A. § 2511(b)?

                 3. Did the trial court abuse its discretion when it changed
                    the goal to adoption?

See Mother’s Brief at 4-5. 2

        We review these issues 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 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.
____________________________________________
2  Mother’s appeal concerns three separate categories: the propriety of the
termination under Section 2511(a); the propriety of the termination under
Section 2511(b); and the court’s decision to change the goal of the
dependency proceedings from reunification to adoption under 42 Pa.C.S.A. §
6351(f). In each category, Mother lists a general heading and then an
immediate subheading. The general headings ask whether the court abused
its discretion, but the subheadings ask whether the Agency provided sufficient
evidence. See Mother’s Brief at 4-5. When consulting the corresponding
argument portion of her brief, it is apparent that Mother’s true aim is to
challenge the sufficiency of the Agency’s evidence in each category of her
appeal. Thus, we restate Mother’s questions presented to reflect the same.

                                               -3-
J-A03028-21



In re T.S.M., 

 (Pa. 2013) (citations and quotation marks

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 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[.]

In re C.M.K., 

 (Pa. Super. 2019) (citation omitted).

      Instantly, the orphans’ court terminated Mother's parental rights

pursuant to Section 2511(a)(1), (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 Section 2511(b), in order to affirm. In re B.L.W., 

 (Pa.

Super. 2004) (en banc). Moreover, we may uphold a termination decision if

any proper basis exists for the result reached. In re C.S., 

(Pa. Super. 2000) (en banc).

      We begin with Mother’s first appellate issue, which corresponds with the

first prong of the bifurcated termination analysis.       We analyze the court's

decision to terminate under Section 2511(a)(2) and (b), which provide as

follows:




                                        -4-
J-A03028-21


         (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).

      To satisfy the requirements of Section 2511(a)(2), the moving party

must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;

(2) that such incapacity, abuse, neglect or refusal caused the child to be

without essential parental care, control or subsistence; and (3) that the causes

of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” In

re C.M.K., 

 (Pa. Super. 2019) (citation omitted). The

grounds for termination are not limited to affirmative misconduct, but concern

parental incapacity that cannot be remedied. In re Z.P., 

, 1117


                                      -5-
J-A03028-21



(Pa. Super. 2010). Parents are required to make diligent efforts toward the

reasonably prompt assumption of full parental duties. 

      Here, the court determined: that Mother suffers from untreated

psychiatric disorders, including schizoaffective disorder – bipolar type and

post-traumatic stress disorder; that her mental health disability rendered her

incapable of parenting; and finally, that Mother’s refusal to meaningfully treat

her mental health meant that she could not remedy her parental incapacity.

See generally Trial Court Opinion (T.C.O.), 9/10/20, at 1-11; see also id.

at 3-7 (Orphans’ Court Findings, ¶¶ 2-22).

      In her brief, Mother largely seeks to relitigate her mental health

diagnoses, drawing this Court’s attention to the testimony and evaluations by

doctors of her choosing. Although these doctors have diagnosed Mother with

other, serious mental health disorders, all have questioned whether Mother

actually suffered from schizophrenia – the diagnosis made by Geisinger Holy

Spirit Hospital following her involuntary commitment at the dawn of this most

recent dependency case. See Mother’s Brief at 37.         These doctors have

diagnosed Mother with general anxiety disorder, attention-deficit hyperactivity

disorder (predominantly inattentive type), and chronic post-traumatic stress

disorder. Id. at 36. Mother cites to them in the hope that we infer her mental

health condition to be far less serious than what the orphans’ court and the

Agency suggest.

      Mother’s only legal citation to authority is In re A.L.D., 

(Pa. Super. 2002), which she cites for the proposition that termination is not

                                     -6-
J-A03028-21



warranted if the parent makes reasonable efforts to overcome the barriers to

reunification. See Mother’s Brief at 29. It is unclear why Mother relies on this

case, because in A.L.D., this Court also observed that “[i]f a parent fails to

cooperate or appears incapable of benefiting from reasonable efforts supplied

over a realistic period of time, the [A]gency has fulfilled its mandate and…the

termination petition may be granted.” A.L.D., 

 (citation

omitted).

      To be sure, the effect of Mother’s mental health on her parenting ability

was the essence of the court’s determination under Section 2511(a)(2).

Although Mother’s argument largely pertains to the validity of her original

schizophrenia diagnosis, the ultimate concern for the court was not whether

Mother was schizophrenic, but whether Mother sought appropriate treatment

for her mental health conditions in order to properly care for Child. Whatever

ailments Mother suffers from, the court determined that they interfere with

Mother’s ability to parent.

      The orphans’ court explained why it was troubled by Mother’s self-

reported mental health treatment:

         Mother has mental health issues, which she only partially
         self-treats, rather than follow the Agency’s or her own
         [c]ounselor’s professional advice. Mother is doctor shopping
         in at least three states; she may have had other evaluations,
         but she only authorizes release of medical information on
         her terms. She does regularly see [a c]ounselor but only
         because it is on her terms. This may be the dosage of
         treatment that Mother can handle, which is satisfactory for
         her, but does not, and will not provide [Child] with the
         developmental, physical, and emotional essentials that he


                                     -7-
J-A03028-21


         needs now from a parent, and the permanency he needs
         long term. It is clear that while the necessary services to
         address Mother’s mental health needs have been offered,
         she is unwilling or simply unable to do what needs to be
         done in the window of time available. No prognosis is given
         that her ongoing mental health condition will change
         anytime soon.

T.C.O. at 10.

      The court was clearly alarmed by Mother’s outright refusal to cooperate

with the Agency. After all, the Agency was simply attempting to verify that

Mother was, in fact, seeking the appropriate treatment for appropriate

diagnoses and that she actually followed through with the corresponding

professional recommendations. The court found Mother typically refused to

submit to the Agency’s mental health evaluations.     The court determined

further that, to the extent Mother did comply, Mother sought her own doctors,

purposefully kept the Agency out of the loop, and then only participated in

treatment insofar as Mother deemed appropriate.

      Beyond Mother’s lack of cooperation with the Agency, the more pressing

issue was that Mother made insufficient progress to rectify her parental

incapacity.     By way of an example, Mother would often have emotional

outbursts during her visits with Child. In turn, Child would display his own

trauma, resulting in his own treatment. To be sure, the Agency acknowledged

Mother made some progress. But as Mother notes, the Agency caseworker

ultimately testified that Mother had not made enough progress to avoid

termination. See Mother’s Brief at 39. Meanwhile, Child had been out of




                                    -8-
J-A03028-21



Mother’s care for approximately 28 months at the time of the termination

hearing.

      After review, we conclude that the record supports the court’s decision

that Mother was incapable of parenting, pursuant to Section 2511(a)(2).

Mother refused to work with the Agency in its attempt to verify her mental

health diagnoses and treatment. To the extent that Mother made legitimate

efforts to treat her mental health issues, the Agency was still able to

demonstrate by clear and convincing evidence that Mother’s progress, after

28 months, was insufficient. We conclude termination was warranted under

this first prong of the termination analysis.

      Next, we consider whether Mother’s second appellate issue, which

corresponds with the second prong of the bifurcated termination analysis;

namely, whether the Agency satisfied its burden Section 2511(b). This Court

has explained that:

           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., 

 (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. In re K.Z.S., 

           (Pa. Super. 2008). Accordingly, the extent of the bond-
           effect analysis necessarily depends on the circumstances of
           the particular case. 

.


                                       -9-
J-A03028-21



In re Adoption of J.M., 

 (Pa. Super. 2010).

      Importantly, the question is not merely whether a bond exists, but

whether termination would destroy this existing, necessary and beneficial

relationship. See C.M.K., 203 A.2d at 264 (citation omitted).

      Here, the orphans’ court noted that Child loved his Mother, but that Child

desired to be adopted by his foster parent. Child was appointed legal counsel,

pursuant to 23 Pa.C.S.A. § 2313(a), who represented that Child seeks to

remain with the pre-adoptive foster parent. The court observed Child and

noted that Child appears to be thriving in his current environment. Finally,

the court heard expert testimony from Dr. Howard Rosen, who conducted a

bonding evaluation. Dr. Rosen opined that Child would not suffer irreparable

harm from severing the bond he has with Mother, as Mother has not

functioned as a primary caregiver for some time. See Notes of Testimony

(N.T.1), 7/14/20, at 43. Ultimately, the court determined that termination

best served the Child’s needs and welfare. See T.C.O. at 3, 7.

      Curiously, though Mother does not formally contest the effectiveness of

Child’s appointment of legal counsel, she utilizes this section of her brief to

cast doubt on whether termination was actually Child’s desired outcome. See

Mother’s Brief at 48-56. Mother concludes her argument by suggesting that

Permanent Legal Custody (PLC) would be a better disposition. Id. at 55.

      At the hearing, the pre-adoptive foster parent testified that Child said

he wanted to say in his care. N.T. 1, at 37.   The foster parent added that he

did not talk with Child very much about the termination hearing, but

                                    - 10 -
J-A03028-21



speculated that the Child is concerned about whether he will see his Mother

again. Id. The foster parent also testified Child understands that, if Mother

stabilizes, gets mental health care, and it is appropriate for Child to see her,

then the foster parent will allow for contact. Id.

      Likewise, Child’s legal counsel represented that Child loves his Mother,

but is aware of Mother’s inability to meet her mental health needs. See Notes

of Testimony (N.T. 2), 7/28/20, at 121; see also Legal Counsel’s Brief at 10.

The legal counsel represented that Child understood the termination

proceedings, that he would like to have relationship with Mother, but that

Child’s preferred outcome of the termination hearing was to have permanency

with the foster parent. Id. Regarding the potential for future contact between

Mother and Child post-termination, Child’s legal counsel represented that Child

understood that it would be up to his foster parent to make this decision and

trusted the foster parent to decide his best interests. Id. at 121-122.

Therefore, to the extent Mother preserves any challenge to the propriety of

Child’s representation under Section 2313(a), we discern no error.

      Insofar as Mother’s argument can be transposed onto a proper Section

2511(b) analysis, the record supports the orphans’ court decision to

terminate. We recognize that the 11-year-old Child has spent the majority of

his life with Mother. But in light of Mother’s mental health struggles, and the

two years Child has spent outside of her care, we cannot agree with Mother

that their relationship is so necessary or beneficial that it should be preserved

over termination. Rather, termination best serves Child’s needs and welfare,

                                     - 11 -
J-A03028-21



as it achieves the vital security, stability, and permanency currently missing

from Child’s life.   Because Mother does not otherwise contest the court’s

determinations under Section 2511(b), we agree with the orphans’ court that

the Agency satisfied this second prong of the termination analysis.

      Finally, we turn to Mother’s third appellate issue, which concerns the

court’s decision to change the goal of the dependency proceedings from

reunification to adoption. See 42 Pa.C.S.A. § 6351(f). But before we may

address the merits of this issue, we must determine whether Mother preserved

the issue. For the reasons below, we conclude that she has not.

      In June 2018, our Supreme Court disapproved of the practice of filing a

single notice of appeal from an order or judgment involving more than one

docket number. See generally Commonwealth v. Walker, 

(Pa. 2018). The Court observed that the “proper practice under [Pa.R.A.P.]

341(a) is to file separate appeals from an order that resolves issues arising on

more than one docket.” Walker, 

. Accordingly, the Court

determined, “[t]he failure to do so requires the appellate court to quash the

appeal.”

      Here, Mother filed a single notice of appeal from the termination decree,

which the orphans’ court entered on Child’s adoption docket (046-Adopt-

2020). At first blush, there appears to be no violation of Pa.R.A.P. 341(a) or

Walker. However, Mother also seeks to challenge the decision to change the

dependency goal from reunification to adoption. The problem is that this goal

change decision was issued by a separate order, on a separate docket, and

                                     - 12 -
J-A03028-21



technically by a separate court. See Child’s dependency docket (CP-21-DP-

00128-2009).            Notwithstanding Mother’s appeal of the termination decree

Mother did not appeal the goal change order, nor did she list the separate

dependency docket. Procedurally, Mother seeks to bootstrap the goal change

issue onto her termination appeal, without abiding by the proper Rules of

Appellate Procedure.              Because no appeal of the goal change decision was

actually taken, we conclude Mother waived3 her third issue.

        Even if the goal change issue was properly before us, the effect of our

decision to affirm the orphans’ court’s termination decree necessarily renders

moot the dependency court’s decision to change Child’s goal to adoption. See

Interest of D.R.W., 

 (Pa. Super. 2020) (“An issue before

a court is moot if in ruling upon the issue the court cannot enter an order that

has any legal force of effect.”) (Citation omitted).

        In sum, we conclude that the orphans’ court did not abuse its discretion

when terminating Mother’s rights under Section 2511(a)(2) and (b).              We

conclude further that the Agency provided sufficient evidence to allow the

orphans’ court to reach this determination.             Finally, we conclude Mother

waived her third issue that the dependency court erred when it changed

Child’s goal from reunification to adoption.

    Decree affirmed.


____________________________________________
3Had Mother’s defect been with her notice of appeal from the dependency
docket, the proper remedy would be to quash the appeal. Here, no appeal
was taken at all.

                                               - 13 -
J-A03028-21




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/03/2021




                          - 14 -