Opinion
660 EDA 2023 661 EDA 2023
01-10-2024
IN THE INTEREST OF: A.C., A MINOR APPEAL OF: K.C., MOTHER IN THE INTEREST OF: A. N.C., A MINOR APPEAL OF: K.C., MOTHER
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered February 13, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-DP-0000515-2021, CP-51-AP-0000456-2022
Benjamin D. Kohler, Esq.
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM
STABILE, J.
Appellant, K.C. ("Mother"), appeals from the order and decree entered February 13, 2023, changing the permanency goal of A. N.C. ("Child") to adoption and terminating Mother's rights. We affirm.
The record reveals that Child was born in January of 2020. On the morning of May 10, 2021, Mother dropped Child off at Little Cactus Daycare. Daycare staff contacted emergency medical services after noticing bruising on Child's body and a deformity of her right femur. She was taken to St. Christopher's Hospital for Children where an examination revealed severe, nearly fatal injuries:
[Child] had multiple bruises on her torso and extremities; abdominal tenderness; a healing fracture of her right clavicle; a possible left clavicle fracture; multiple right and left rib fractures in various stages of healing; a grade III liver laceration; possible pancreas, bowel, and spleen injuries; a left ulnar fracture; a right radius fracture in the early stages of healing; a markedly displaced right femur fracture, and a left femur fracture. She also had several horizontal small scabs on the right side of her neck. Her primary care physician records note a history of poor weight gain since her birth. She weighed 17 pounds when she was admitted to the hospital on May 10, 2021, and was suffering from severe anemia. Hospital staff observed that [Child] could not tolerate solid foods for several days after her admission and that she was suffering from thrush as a result of being bottle fed. Hospital staff also observed that [Child's] affect was flat upon her admission and for several days afterward. The hospital staff determined that her bruising, fractures in various stages of healing, and intra-abdominal trauma are consistent with extensive, life-threatening child physical abuse.Trial Court Opinion, 5/15/23, at 5.
That same day, Appellee Philadelphia Department of Human Services ("DHS") received a child protective services report from Little Cactus Daycare describing Child's condition. DHS personnel observed Child at St. Christopher's on May 11, 2021, by which time she had casts up to her shoulders on both arms, a cast on her right leg, and was on intravenous pain medication. Mother explained to DHS personnel that she had recently broken up with her paramour because of his abusive behavior, and that Child recently had been in the care of her ex-paramour:
The [DHS] report alleged that Mother stated that she and her ex-paramour, [K.P.], had recently separated after [K.P.] was abusive to her; that [K.P.] had retrieved [Child] from daycare on May 7, 2021; that Mother stated that she and [Child] had stayed at [K.P.'s] home from the night of May 7, 2021 until 4:30 p.m. on May 8, 2021; and that she left [Child] in [K.P.'s] care from the afternoon of May 8, 2021 until the morning of May 10, 2021. The report alleged that some of [Child's] injuries appeared older than a couple of days; that Mother stated that [Child] was sleeping when she retrieved her from [K.P.'s] home; that she thought that A.C. was just tired and did not want to go to daycare; that [Child] was anemic upon arrival to the Emergency Room (ER); and that Mother telephoned [K.P.] while she was at the hospital, and he stated that [Child] had fallen off the couch, which is inconsistent with all of [Child's] injuries. The report further alleged that [Child] is not walking yet; that [Child] had no prior medical concerns or delays; that [K.P.] is currently on probation for unknown charges; and that Mother may be experiencing symptoms of depression.Id. at 3.
DHS obtained an order of protective care for Child on May 21, 2021, the day she was cleared for discharge from the hospital. At a May 24, 2021 shelter care hearing, the court ordered Child's temporary commitment to DHS to stand. Pursuant to a Single Case Plan ("SCP") created at a June 2, 2021, hearing at which Mother participated by phone, Mother was to complete domestic violence and parenting programs, undergo behavioral health treatment, obtain suitable housing, and attend all scheduled visits with Child.
Child's father's whereabouts were unknown until August 26, 2020, when he was arrested on drug and firearms charges. Father has not appealed from the order terminating his parental rights.
DHS filed a dependency petition for Child on June 7, 2021 alleging aggravated circumstances pursuant to 42 Pa.C.S.A. § 6302. At a December 26, 2021 adjudicatory and aggravated circumstances hearing, the Court adjudicated Child dependent and found by clear and convincing evidence that aggravated circumstances existed and that Child was the victim of abuse perpetrated by Mother and K.P. The court ordered that no further efforts were to be made to reunite Mother and Child. This Court affirmed on August 18, 2022. On July 25, 2022, DHS filed a petition to change Child's permanency goal to adoption and to terminate Mother's parental rights. The trial court conducted a hearing on February 13, 2023 and entered the orders on appeal at the conclusion of that hearing. This timely appeal followed.
The statutory definition of aggravated circumstances includes cases in which "The child or another child of the parent has been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by the parent." 42 Pa.C.S.A. § 6302, Aggravated Circumstances, subsection 2.
Mother presents three questions:
1. Did the lower court err in terminating [Mother's] parental rights based on insufficient evidence being introduced to establish grounds under 23 Pa.C.S.A. § 2511(a) and (b)?
2. Did the lower court err in terminating [Mother's] parental rights and changing the goal to adoption without proper consideration of Family Finding and the possibility of placing [Child] with kin?
3. Did the lower court err in having insufficient evidence to find it was in the best interests of [Child] for the goal to be changed from reunification to adoption?Mother's Brief at 8.
We review an order terminating parental rights according to the following standard:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our 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.In re S.P., 47 A.3d 817, 826 (Pa. 2012) (citations omitted).
As petitioner, DHS bore the burden of proving by clear and convincing evidence that termination of Mother's rights was appropriate under 23 Pa.C.S.A. §§ 2511(a) and (b). In re S.K.L.R., 256 A.3d 1108, 1126 (Pa. 2021). Mother argues the trial court erred in finding that DHS carried its burden.
We confine our review to § 2511(a)(1), which permits termination of parental rights where "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." 23 Pa.C.S.A. § 2511(a)(1).
We can affirm an order terminating parental rights if we find any one subsection of § 2511(a) to be satisfied. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004), appeal denied, 863 A.2d 1141 (Pa. 2004).
'Parental duties' are not defined in the Adoption Act, but our courts long have interpreted parental duties in relation to the needs of a child[,]" such as "love, protection, guidance and support. Parental duties are carried out through affirmative actions that develop and maintain the parent-child relationship. The roster of such positive actions undoubtedly includes communication and association. The performance of parental duties requires that a parent exert himself to take and maintain a place of importance in the child's life. Fortitude is required, as a parent must act with reasonable firmness to overcome obstacles that stand in the way of preserving a parent-child relationship and may not wait for a more suitable time to perform parental responsibilities.In re L.A.K., 265 A.3d 580, 592 (Pa. 2021) (citations and quotation marks omitted). Where the record reflects that a parent has failed to perform parental duties we must then consider whether, under the totality of the circumstances, termination of parental rights is warranted. Id. at 593. Our consideration of the totality of the circumstances includes:
(1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between the parent and child, if any, including any efforts made by the parent to reestablish contact with the child; and (3) the effect that termination of parental rights would have on the child pursuant to Section 2511(b)Id.
In In re A.M., 256 A.3d 1263 (Pa. Super. 2021), the child had been living with foster parents for 33 months, the mother had failed to visit with the child for at least six months prior to the termination petition, had failed to participate in parenting skills services, and had been discharged unsuccessfully from other services. This Court concluded that clear and convincing evidence support termination of her parental rights under § 2511(a)(1) for failure to perform parental duties. Id. at 1271.
Similarly, in this case, Mother failed to complete parenting and domestic abuse courses recommended to her in the SCP. She also failed to obtain suitable housing. The record confirms that Mother was aware of her SCP objectives. N.T. Hearing, 2/13/23, at 20-21, 41. She participated in the SCP meeting by telephone. Id. at 21, 60-61. As of the termination hearing, Mother had not had visits with Child since December 16, 2021, more than one year earlier. Id. at 22. At the agency's most recent visit with Mother, she was staying at a friend's house sleeping on a couch. Id. at 42.
Mother claimed at the hearing to be working on parenting classes and domestic counseling, and that she was living at a shelter that would help her find a home. Id. at 55-58. She acknowledged that her most recent visit with Child was in December of 2021. Id. at 59. The visits stopped after the finding of aggravated circumstances. The trial court gave little weight to Mother's testimony, noting that she failed to attend any hearings after the trial court's finding of aggravated circumstances, and she never attempted to have visitation reinstated. Id. at 72-73. Mother provided no documentation of her post-petition attempts to comply with her SCP objectives. Id. at 70. In essence, there is no evidence that Mother discharged or attempted to discharge any parental duty to Child in between the December 26, 2021 adjudicatory hearing and the agency's July 25, 2022 termination petition. Mother's claimed post-petition efforts were undocumented. Even if Mother's testimony was accurate, her efforts did not commence until more than one year after Child was removed from her care.
This record supports a conclusion that Mother failed to perform any parental duties from December, 26, 2021 through July 25, 2022, a period of more than six months. We now turn to the three-pronged analysis cited in Z.A.K. First, Mother's explanation for her failings. Mother argues in her brief that she was unaware of her SCP objectives until after the Agency filed its petition, but that argument is belied by the record, including Mother's own testimony in which she admitted participating by phone in the June 2, 2021 proceeding at which the SCP was established. Second, we must examine the parent's post-abandonment conduct and/or the parent's efforts to reestablish conduct. Mother had no contact with Child after December of 2021, she did not seek to reestablish visitation, and she made no effort to comply with her SCP or otherwise prepare herself to resume custody of Child.
Next, as per § 2511(b) and the third prong of Z.A.K., we must consider the effect on Child of the termination of Mother's parental rights:
(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(b). "The emotional needs and welfare of the child have been properly interpreted to include [i]ntangibles such as love, comfort, security, and stability." In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). "[T]he determination of the child's 'needs and welfare' requires consideration of the emotional bonds between the parent and child. The 'utmost attention' should be paid to discerning the effect on the child of permanently severing the parental bond." Id.
The Community Umbrella Association ("CUA") case manager testified at the termination hearing that Child is well bonded with her pre-adoptive caregiver and well cared for. Id. at 24. Child looks to the caregiver for love and support and refers to her as "mommy." Id. Child would suffer no irreparable harm upon termination of Mother's rights. Id. at 25. There is no bond between Mother and Child, and Child would suffer no irreparable harm from termination, given the total lack of recent interaction between Mother and Child. Id. at 23-25. The trial court accepted the case worker's testimony as credible, and determined on that basis that termination of Mother's parental rights was appropriate under § 2511(b). We discern no error.
In her second argument, Mother claims the trial court erred in terminating her parental rights without engaging in family finding:
"Family finding." The ongoing process of identifying and engaging extended family members and adults who have or could have significant, positive connections with a child or family that has been accepted for services in order to:
(1) Build a network of support for the child and the child's family.
(2) Promote positive, long-term connections for the child.
(3) Include relatives and kin in social service planning and delivery.
(4) When necessary, identify a safe and familiar placement for the child.67 Pa.C.S.A. § 7502, "Family Finding."
Mother fails to cite any law establishing that the family finding procedure is a necessary component to our analysis under § 2511. We are cognizant that county agencies are required to conduct family finding under 67 Pa.C.S.A. § 7503. Even if, for whatever reason, that did not happen in this case, Mother should have raised the issue long before the termination hearing. By that time, Child had already been in placement and formed a loving bond with a pre-adoptive caregiver for nearly two years. This argument does not alter our conclusion that termination of Mother's parental rights is appropriate in this case under § 2511.
In her final argument, Mother claims the trial court erred in changing Child's permanency goal to adoption. Given our disposition of the appeal from the decree terminating her parental rights, Mother's challenge to the goal change order is moot. In re D.R.-W., 227 A.3d 905, 917 (Pa. Super. 2020).
For the foregoing reasons, we discern no error in the trial court's decision to change Child's goal to adoption and terminate Mother's parental rights.
Order and Decree affirmed.
Judgment Entered.