Opinion
J-S02045-14 No. 2589 EDA 2013
03-27-2014
IN RE: ADOPTION OF: D.A.S., A MINOR APPEAL OF: D.A.S., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree August 15, 2013
in the Court of Common Pleas of Montgomery County
Orphans' Court at No.: 2013-A0062
BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. MEMORANDUM BY PLATT, J.
Retired Senior Judge assigned to the Superior Court.
D.A.S. (Mother) appeals from the final decree of the Court of Common Pleas of Montgomery County entered on August 15, 2013, that involuntarily terminated her parental rights to her son, D.A.S. (Child). We affirm.
The trial court also terminated the parental rights of Child's putative father and unknown birth father. ( See N.T. Hearing, 8/15/13, at 146). Those decrees are not at issue in this appeal.
Our review of the record reveals that it supports the following recitation of the facts of this case. Child was born December 18, 2009. The Montgomery County Office of Children and Youth (OCY) received a report on February 23, 2010, when Child was just two months old, that Mother was struggling with mental health problems and substance abuse. OCY investigated the report, opened a case, and worked with Mother for nearly two and one half years to provide the support necessary to enable her to properly parent Child. ( See N.T. Hearing, 8/14/13, at 7-9).
OCY filed its petition to terminate Mother's parental rights to Child on April 12, 2013. The trial court held a hearing on that petition on August 14 and 15, 2013. Testifying at that hearing, in addition to Mother, were W.F., Child's foster father (Foster Father); Lisa Carty, Mother's probation officer; Veronica Owens, Mother's counselor at Gaudenzia House; Jacqueline Haelle, Child's former OCY caseworker; and Stephen Polonsky, Child's current OCY caseworker.
OCY's goals for Mother were to obtain a mental health evaluation and engage in treatment, to find stable housing, and to maintain recovery from drug and alcohol abuse. Mother did not obtain a mental health evaluation for an extensive period. ( See id., 8/14/13, at 8-9). She participated in mental health therapy for several months but was not consistent and missed appointments. ( See id., 8/15/13, at 8, 41-42).
Mother never obtained stable housing, and moved at least six times between March of 2010 and June of 2012, usually staying in the homes of friends and family. ( See id., 8/14/13, at 8, 9). She lived apart from Child from July of 2011 until October of 2011, permitting a friend to care for Child during this period. Mother was also on probation during this time and, in violation of that probation, failed to notify her probation officer of any of these moves. ( See id., 8/15/13, at 33). Mother also consistently failed to provide OCY with contact information. ( See id., at 17, 35). As a consequence of this failure, OCY often had difficulty locating Mother and Child to complete their monthly visits to verify Child's safety. ( See id., 8/14/13, at 9-10).
Mother did not achieve the goal of maintaining recovery from drugs and alcohol. Mother tested positive for illegal drugs on at least six occasions with her probation officer. These positive results occurred in October 2010, November 2010, December 2010, January 2011, March 2011, April 2011 and January 2012. ( See id., 8/15/13, at 15-16, 19-20).
In February of 2011, due to continued concerns about Mother's drug use and her untreated mental health concerns, OCY implemented a safety plan to protect Child, by which Mother would be supervised by another adult at all times when she was with Child. This plan remained in effect until June of 2012, when Ms. Haelle testified she was unable to locate Mother or Child. Mother had left her previous home and failed to notify OCY of her new address. ( See id., 8/14/13, at 10-11). Ms. Carty testified that she had grave concerns about Mother's severe mental health symptoms at this time, and believed that Mother had recently attempted suicide. ( See id., 8/15/13, at 18-19). OCY took custody of Child at this point, and placed him in foster care. ( See id. 8/14/13, at 9).
Mother was arrested on July 2, 2012, and remained in prison until November 2, 2012. ( See id., 8/15/13, at 18-20). Mother attempted to find housing and to enter treatment on release but was unsuccessful in achieving either goal. ( See id., 8/14/13, at 18-19; 8/15/13, at 25-26). Mother tested positive for amphetamines in January and March of 2013. ( See id., 8/15/13, at 21-22).
Mother attended all six visits OCY offered with Child from November of 2012 through March of 2013, and interacted appropriately with Child during those visits. ( See id., 8/14/13, at 19, 89-90).
Ms. Carty, Mother's probation officer, testified that Mother was arrested again on March 4, 2013, and remained incarcerated until she was paroled directly into an inpatient treatment program (Kindred House), a part of Gaudenzia House, in July of 2013. ( See id., 8/15/13, at 22-23). Mother is expected to remain in this program for six to nine months and may enter a transitional housing program if she completes the residential portion of the program successfully. ( See id., 8/15/13, at 40, 59-60).
Mother's current OCY caseworker, Stephen Polonsky, testified that, for Mother to reach a point where OCY would consider her stable enough to return Child to her care, she would have to complete the six to nine month program at Gaudenzia, and move on to their transitional housing program, and have several months of independent stability. ( See id., 8/14/13, at 86-87). Caseworker Stephen Polonsky testified that, in view of Mother's history, instability, substance abuse and mental health problems, and her then current pregnancy with another child, even if she were to be in full compliance with her current treatment program, the earliest that OCY would be able to recommend reunification of Child with Mother would be nine to twelve months beyond the date of the termination hearing. ( See id. at 86-87).
Ms. Haelle, Mother's former caseworker, testified that she believed that adoption was in Child's best interest because all of his physical, mental and emotional needs are being met, he has bonded with his Foster Father, and he needs the stable, secure and permanent home that Foster Father provides for him. ( See id. at 21-22). Child has a loving and healthy bond with Foster Father that is stronger than his bond with Mother. ( See id. at 21, 34-35; 8/15/13, at 69-70). Neither caseworker believed Child would suffer irreparable harm if the trial court terminated Mother's parental rights. ( See id. 8/14/13, at 22; 8/15/13, at 70). Mr. Polonsky testified that Child's Foster Father is committed to permitting a continued relationship between Mother and Child, to the extent that it is in Child's best interest. ( See id., 8/14/13, at 70-71; see also id., 8/15/13, at 8). Foster Father testified that he wants to adopt Child. ( See id., 8/15/13, at 8).
The trial court entered its decree terminating Mother's parental rights on August 15, 2013. Mother timely filed her notice of appeal and statement of errors complained of on appeal on September 9, 2013.
Mother raises the following questions on appeal:
I. Whether the [trial court] erred in finding clear and convincing evidence to terminate the parental rights of [Mother] on the basis of 23 Pa.C.S.A. § 2511(a)(2) by determining against the weight of the evidence that [Mother's] repeated and continued incapacity, neglect, or refusal caused [Child] to be without essential care, control or subsistence, and that [Mother's] incapacity, neglect, or refusal cannot or will not be remedied, despite evidence presented regarding the actions of [Mother][?](Mother's Brief, at 7).
II. Whether the [trial court] erred by terminating the parental rights of [Mother] on the basis of 23 Pa.C.S.A. § 2511(a)(5) by determining against the weight of the evidence that [Child] had been removed from the care of the parent by the court or under the voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of [Child] continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of the time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of parental rights would best service the needs and welfare of [Child][?]
III. Whether the [trial court] erred by terminating the parental rights of [Mother] on the basis of 23 Pa.C.S.A. § 2511(b) by determining against the weight of the evidence that the development[al], physical and emotional needs and welfare of [Child] will best be served by terminating [Mother's] parental rights[?]
Our standard of review is well-settled:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result.In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.
Here, OCY sought termination of Mother's parental rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b), which provide, in pertinent part:
§ 2511. Grounds for involuntary termination23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b).
(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:
(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 or failed to perform parental duties.
(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.
* * *
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
* * *
(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.
This Court need only agree with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
It is well settled that a party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence," a standard which requires evidence that is "so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further,
A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental 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 the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
The fundamental test in termination of parental rights under section 2511(a)(2) is long-settled. See In re Geiger, 331 A.2d 172 (Pa. 1975). In Geiger, the Pennsylvania Supreme Court announced that under what is now section 2511(a)(2), the petitioner for involuntary termination must prove:
"[t]he 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."Id., at 173.
The Adoption Act provides that a trial court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.A. § 2511(b). The Act does not make specific reference to an evaluation of the bond between parent and child but our case law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481, 484 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
Mother claims that the trial court erred in terminating her parental rights pursuant to subsection 2511(a)(2) because, "[i]n the present case, Appellant's entrance into inpatient treatment at Guadenzia [sic] House has remedied the basis for OCY's petition for termination. Thus, the Court abused its discretion and erred in its determination." (Mother's Brief, at 20). Mother further responds to the question of her lack of housing and employment by stating:
Furthermore, after the completion of the inpatient treatment, Guadenzia [sic] House will assist Mother in obtaining housing. (Tr. Aug. 15 at 60). Both Mother and [C]hild can live together at Guadenzia [sic] House during her entire stay as well as when she transitions into housing outside of Guadenzia [sic]. (Tr. Aug. 15 at 60). Therefore, the basis of lack of housing had also been clearly remedied. In addition, Guadenzia [sic] House provides assistance to Mother in obtaining employment; once again remedying any basis for termination.( Id., at 20-21).
Setting aside whether a drug rehabilitation facility is the ideal place for a child to reside, what Mother sees as defenses to OCY's claims are merely prospective solutions to her problem of substance abuse and to her lack of housing and employment. Mother has a long-term history of substance abuse, mental health problems, unstable housing and unemployment. The fact that she is participating in inpatient substance abuse treatment does not mean that she has solved her problem; it means that she is addressing her problem. The possibility that Gaudenzia could eventually help her find housing and employment does not mean that she has solved those problems; it means that, if she completes the program, she will have assistance in solving them.
At the close of the hearing on August 15, 2013, the trial court read its decision into the record:
[I]n this case the [c]ourt must consider not only the 12 or 15 months that [Child] has been in care but the entire history of the case. The very lengthy time, the really rather unusual length of time that [OCY] worked with [Mother], put a safety plan in place and attempted to keep her together with [Child], I think it is to the agency's credit.( See N.T. Hearing, 8/15/13, at 141-44).
But I think, unfortunately, is has to be weighed in the balance as a very lengthy period of time that [Child] was without sufficient stability to give him the tools that he deserves to have, the household stability, in order to allow him to grow and flourish.
[Child] is now three-and-a-half years old. It is extremely critical that [Child] achieve and maintain stability. And I think he, given the testimony that I heard about [Child] being a, I'm sure, delightful and very bright child, but also a child with behavioral issues at school, he's at a very delicate balancing point in his young life at three-and-a-half.
Given the precise history of this case, I have to take seriously the evaluation of [OCY] in its arguments, and of the guardian ad litem, and also the testimony of Mr. Polonsky.
The question of the reasonableness of the timeframe during which [Mother] might be able to provide a stable home to which [Child] could come and live with her comes down to this. Mr. Polonsky testified that in order for [Mother] to meet full compliance with all of the requirements that [OCY] would have to evaluate, she would have to not only complete the six- to
nine-month program at Gaudenzia successfully and transition into transitional housing, but she would also have to have several months of success and stability, at least in the transitional housing with some support, raising her other child, and many factors would need to be evaluated over a period of months.
Based on that testimony and that understanding of the agency's difficult position, there is no likelihood that [Mother] would be reunited with [Child] in under 12 months. To the contrary, it is more likely to be 12 to 24 months before reunification could occur.
Given [Child's] age, and as I said, weighing in the balance the years of instability that he already has suffered, and the recovery that he needs to make for that, I conclude that the conditions that led to his removal from the home continue to exist and that [Mother] does not now have a safe and stable home of her own and has not achieved a sufficient period of time of stability and recovery to give the agency or this [c]ourt confidence that she will be able to maintain that recovery.
That's not to say that she won't. I don't wish to be a predictor, and if I had to predict I believe that she will. But neither the agency nor the [c]ourt can be confident that it's in Child's interest to return to her until too long a period of time would have to elapse, so it cannot be achieved in a reasonable time because of how late we are starting in the process.
I understand [Mother's] wish to have a second chance. And other parents have been in the same position and I hear that request. In this case I have to conclude that the request for a second chance is simply coming so late since the lengthy period of time that [OCY] has been involved, that this three-and-a-half-year-old boy needs to be able to move on.
Mother also argues that the trial court abused its discretion by finding that it was in the best interests of Child's developmental, physical and emotional needs and welfare to terminate her parental rights pursuant to subsection 2511(b) because there was a bond between Mother and Child. ( See Mother's Brief, at 26-27). The trial court found that there was a bond between Mother and Child but that the termination of Mother's parental rights would not irreparably harm Child:
I'm also required to address the question of parental bond. And as I have said, [Mother] has a bond with [Child] and he with her and there is no question that she loves him. Mr. Polonsky testified that he also has a bond with his foster father which is a loving and healthy bond, and which he described as an even stronger bond at this stage because of the consistency and stability that [Foster Father] has been able to provide to [Child] for the last year and more.( Id., 8/15/14, at 144-46).
Under all of these circumstances, I think I can also consider [Foster Father's] representation and testimony that he has been willing to consider permitting [Mother] to continue to have a relationship with [Child], to the extent that that's in [Child's] best interest. And I think the testimony today established that, particularly as she maintains her recovery, that will be in [Child's] best interest, as well as hers.
Given the likelihood that that will continue to occur, for the benefit of both [Child] and [Mother], I conclude that the termination of parental rights will not irreparably harm [Child], and in fact will free [Child] for the stable and permanent home which he deserves.
Based upon all of the foregoing facts and conclusions of law, and recognizing that this is a difficult case, I am required to enter today a decree terminating the parental rights of [Mother] to [Child]. And I find that grounds exist and have been established by clear and convincing evidence, under both Section 2511(a)(2) and 2511(a)(5), and that the same conditions continue to exist and will not be remedied in a reasonable period of time.
And, that [OCY] has demonstrated that [Mother] has had an incapacity to successfully parent and provide all of the essential parental care and control and subsistence necessary for
[Child's] well-being for the lengthy period of time that [OCY] has been involved in this case.
Here, on review, we find that the record supports the trial court's determination that the termination of Mother's parental rights will serve Child's best interest, and that the bond between Mother and Child is not so strong that severing it will irreparably harm Child.
Accordingly, we conclude that the decision to terminate Mother's parental rights under Sections 2511(a)(2) and (b) is supported by clear and convincing evidence in the record, and that there was no abuse of the trial court's discretion.
Decree affirmed. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary