Opinion
2034 EDA 2023 J-S42003-23
01-10-2024
IN THE INTEREST OF: A.Z.B., A MINORAPPEAL OF: A.K., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Decree Entered July 19, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000111-2023
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
MEMORANDUM
BOWES, J.
A.K. ("Mother") appeals the July 19, 2023 decree that involuntarily terminated her parental rights to her biological son, A.Z.B. a/k/a A.B. ("A.Z.B."), born in May 2020. After careful review, we affirm.
The trial court also involuntarily terminated the parental rights of A.B. ("Father") in decrees filed the same day. Father filed an appeal, wherein this Court affirmed. See In the Interest of A.Z.B., 2037 EDA 2023, 2023 WL 7325610, at *6 (Pa.Super. Nov. 7, 2023) (non-precedential decision).
We glean the relevant factual and procedural history of this matter from the certified record. The Department of Human Services ("DHS") first became involved with this family on October 7, 2020, when it received a General Protective Services ("GPS") report concerning an incident of domestic violence involving A.Z.B., who was approximately five months old at the time of these events. On that day, officers of the Philadelphia Police Department responding to the home shared by Mother and A.B. ("Father") (collectively, "Parents") found A.Z.B. suffering from a "skull fracture" that he suffered from the blow of a hammer. See N.T., 7/19/23, at 14-15. The record reflects that A.Z.B. sustained this injury as the result of a "domestic altercation" between Parents, which occurred while Mother was holding him while Parents were attempting to strike each other with hammers. Id.; Application for Protective Custody, 10/9/20, at 2. A.Z.B. has a history of sustaining head injuries in Parents' care.
Our review indicates that Mother also has a younger son, R.B., who is not a subject of the instant appeal.
The child was taken to Children's Hospital of Philadelphia ("CHOP") to receive care in connection with this injury, at which time he tested positive for having ingested methamphetamines. See N.T., 7/19/23, at 15. Mother also admitted to abusing methamphetamines, crack cocaine, and heroin. Id. at 16, 65.
Following his release from CHOP, A.Z.B. was placed into foster care. He was adjudicated dependent on March 19, 2021. The trial court established an initial permanency goal of reunification with Parents. On the same day, the trial court also entered an order finding that A.Z.B. had been the victim of child abuse perpetrated by Mother and, consequently, that aggravated circumstances existed pursuant to 42 Pa.C.S. § 6341(c.1). However, the trial court directed DHS to continue making efforts to preserve the family and reunify A.Z.B. with Mother.
At the time of A.Z.B.'s dependency adjudication, Mother was incarcerated. Upon her release in approximately June 2021, she was assigned several single case plan ("SCP") objectives in connection with reunification, including completing a domestic violence program, maintaining employment, obtaining appropriate housing, participating in visits with A.Z.B., and completing a "dual diagnosis" for mental health and substance abuse issues. See N.T., 7/19/23, at 21.
The trial court awarded Mother supervised visitation with A.Z.B., although she was not able to participate in such visits until a criminal stay-away order was lifted in June 2021. Id. at 18, 47. Thereafter, her participation in the supervised visits vacillated between sporadic and consistent. Id. at 18-20, 47-49. Mother also had significant difficulty interacting with A.Z.B. during their visits, partly because of his behavioral issues. Id. at 28-29. Specifically, a case worker assigned to the family reported that Mother "often will become frustrated with him when he begins to act out, which creates some stress and anxiety during the visits." Id.
Between October 2021 and August 2022, Mother's initial compliance with SCP directives was rated as moderate to substantial. However, her adherence subsequently regressed to be either minimal or non-existent between October 2022 and July 2023.
On March 24, 2023, approximately one-half way through Mother's decline in participation, DHS filed a petition seeking to involuntarily terminate Mother's parental rights to A.Z.B. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). At this point in time, A.Z.B. was nearly three years old and had been in foster care for over two years. The court held an evidentiary hearing, wherein DHS adduced testimony from Ashley Wolfe, the Community Umbrella Agency ("CUA") case manager assigned to Mother. DHS also introduced into evidence the records of the dependency proceedings concerning A.Z.B. Mother testified on her own behalf.
The record is silent concerning the appointment of legal interest counsel for A.Z.B. pursuant to 23 Pa.C.S. § 2313(a). However, Robin Banister, Esquire, served as A.Z.B.'s guardian ad litem. Insofar as A.Z.B. was between two and three years old at the time of these proceedings and incapable of articulating a preference with respect to termination, we observe no structural defect in the instant case. See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018) (holding that "if the preferred outcome of a child is incapable of ascertainment because the child is very young and pre-verbal," then § 2313(a) "is satisfied where the court has appointed an attorney-guardian ad litem who represents the child's best interests during such proceedings.").
Following the hearing, the trial court terminated Mother's parental rights to A.Z.B. pursuant to § 2511(a)(1), (2), (5), (8), and § 2511(b). Mother filed a timely notice of appeal along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, the trial court filed an opinion pursuant to Rule 1925(a)(2)(ii).
In her brief, Mother has raised a single issue for our consideration: "Did the trial court err in terminating [Mother's] parental rights because [DHS] failed to establish by clear and convincing evidence that [Mother] cannot or will not be able to remedy the incapacity and conditions which led to A.Z.B.'s removal[?]" Mother's brief at 3.
Our standard of review in this context is well-settled:
In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. When applying this standard, the appellate court must accept the orphans' court's findings of fact and credibility determinations if they are supported by the record. Where the orphans' court's factual findings are supported by the evidence, an appellate court may not disturb the orphans' court's ruling unless it has discerned an error of law or abuse of discretion.
An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion or the facts could support an opposite result. Instead, an appellate court may reverse for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. This standard of review reflects the deference we pay to trial courts, who often observe the parties first-hand across multiple hearings.
In considering a petition to terminate parental rights, the orphans' court must balance the parent's fundamental right to make decisions concerning the care, custody, and control of his or her child with the child's essential needs for a parent's care, protection, and support. Termination of parental rights has significant and permanent consequences for both the parent and child. As such, the law of this Commonwealth requires the moving party to establish the statutory grounds by clear and convincing evidence, which is evidence that is so clear, direct, weighty, and convincing as to enable a trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.Interest of M.E., 283 A.3d 820, 829-30 (Pa.Super. 2022) (cleaned up).
The involuntary termination of parental rights is governed by § 2511 of the Adoption Act, which calls for a bifurcated analysis that first focuses upon the "eleven enumerated grounds" of parental conduct that may warrant termination. Id. at 830; see also 23 Pa.C.S. § 2511(a)(1)-(11). If the orphans' court determines the petitioner has established grounds for termination under at least one of these subsections by "clear and convincing evidence," the court then assesses the petition pursuant to Section 2511(b), which focuses upon the child's developmental, physical, and emotional needs and welfare. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). This Court need only agree with the trial court's determination as to any one subsection of § 2511(a), in addition to § 2511(b), to affirm the termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc)
While the argument section of Mother's brief refers to all four subsections that the trial court determined had been established by clear and convincing evidence, the issue that Mother presents relating to her ability "to remedy the incapacity and conditions" only implicates § 2511(a)(2), (5), and (8). See Mother's brief at 3. Mother's failure to challenge the grounds for termination outlined in § 2511(a)(1) is fatal because she has, in effect, conceded that sufficient grounds exist for termination under that subsection. See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa.Super. 2017) (affirming termination decrees because "Mother waived any challenge with respect to Sections 2511(a)(2) and (5) by failing to develop an argument in her brief, and by conceding that CYF presented clear and convincing evidence to terminate her parental rights pursuant to Section 2511(a)(2).").
Mother has also failed to raise any claims related to the trial court's findings pursuant to § 2511(b), either in her Rule 1925(a)(2)(i) and (b) concise statement or in her statement of questions presented in her brief. See Concise Statement, 8/9/23, at 1 (unpaginated); Mother's brief at 3. Thus, any challenge as to § 2511(b) is also waived. Id.
Nevertheless, mindful of the dire consequence of Mother's omissions and our concern for assuring that termination was proper under section 2511(a) and § 2511(b), in an abundance of caution, we address Mother's sole issue as it relates to § 2511(a)(8) and review the court's § 2511(b) analysis. Those sections provide as follows:
(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:
. . . .
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of 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.23 Pa.C.S. § 2511(a)(8), (b).
Section 2511(a)(8) establishes a twelve-month time frame for a parent to remedy the conditions that led to their child's removal by the court. See In re A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Assuming that this one-year threshold has been established, the next element of § 2511(a)(8) involves an evaluation of whether the conditions that necessitated the child's removal continue to exist. This inquiry is focused upon whether the at-issue "conditions" have been "remedied" such that "reunification of parent and child is imminent at the time of the hearing." In re I.J., 972 A.2d 5, 11 (Pa.Super. 2009) (emphasis added). Thus, termination pursuant to § 2511(a)(8) does not include an evaluation of a parent's willingness or ability to remedy the conditions that led to the removal of the child. See In re M.A.B., 166 A.3d 434, 446 (Pa.Super. 2017).
The application of § 2511(a)(8) "may seem harsh when the parent has begun to make progress toward resolving the problems that had led to the removal of her children." In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006). However, "the statute implicitly recognizes that a child's life cannot be held in abeyance while a parent attempts to attain the maturity necessary to assume parenting responsibilities." Id. This Court "cannot and will not subordinate indefinitely a child's need for permanence and stability to a parent's claims of progress and hope for the future." Id.
Finally, § 2511(a)(8) requires an assessment of whether termination would best serve the needs and welfare of the child, which largely dovetails with the analysis required by § 2511(b) discussed further infra. Although these inquiries are legally distinct, we must begin with our analysis pursuant to § 2511(a)(8). See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.Super. 2008) (en banc) ("[W]e are required to resolve the analysis relative to [§] 2511(a)(8), prior to addressing the 'needs and welfare' of [the child], as proscribed by [§] 2511(b) . . . .").
With these overarching legal principles in mind, we turn to Mother's argument, which concerns only her ability to remedy the incapacity and conditions which led to A.Z.B.'s removal. See Mother's brief at 6-9. Aside from noting the standard of review and setting forth the basic statutory requirements pursuant to § 2511(a)(8), we discern that Mother's argument amounts to bald assertions that the conditions that led to A.Z.B.'s removal from the home have been ameliorated due to Mother's alleged participation in housing, parenting, substance abuse, and mental health programs. Id. Like the trial court, we find that Mother's arguments misrepresent the extent of her progress. See N.T., 7/19/23, at 77 ("The testimony reflects that while [Mother] has addressed some of the [SCP] objectives she has not been fully compliant nor made progress to alleviate the need for placement.").
Since our analysis implicates § 2511(a)(8), we note from the outset that we are precluded from considering "any efforts" advanced by Mother "to remedy the conditions" that led to A.Z.B.'s removal which were "first initiated subsequent to the giving of notice of the filing of the petition." 23 Pa.C.S. § 2511(b). Furthermore, during the termination hearing, Ms. Wolfe testified that Mother never completed her "dual diagnosis" assessment for substance abuse and mental health problems. See N.T., 7/19/23, at 22-23. Specifically, Ms. Wolfe reported that Mother only began to tentatively engage with treatment on February 14, 2023, and that the first time that she provided any documentation verifying her belated compliance was the day of the termination hearing on July 19, 2023. Id. at 23-24.
Along similar lines, Ms. Wolfe averred that Mother had neither engaged with, nor completed, an appropriate domestic violence program. Id. at 24. Furthermore, Mother failed to provide verification of her employment or maintain appropriate housing throughout these proceedings. Id. at 25-26. Finally, Mother was persistently inconsistent in participating in supervised visits with A.Z.B., regularly missing appointments without warning or cancelling at the last minute. Id. at 47-50.
At the termination hearing, Mother produced documentation attesting that she had completed a one-hour social work course. See N.T., 7/19/23, at 24. Mother's own testimony, however, indicates that she has not yet completed her domestic violence treatment and that the course referenced in these materials was a "free seminar" that she had attended in an attempt to become a behavioral health specialist. Id. at 53, 64-65.
Mother's own testimony at the hearing is also revealing. She characterized the events that led to A.Z.B.'s removal as "a whole misunderstanding," and flatly denied that her son had sustained a skull fracture. Id. at 58, 61. Indeed, our review of the certified record reflects that Mother has never acknowledged the abuse that A.Z.B. suffered as a result of her actions, or offered a concrete explanation as to how he was injured.
Based upon the foregoing, we find no abuse of discretion or error of law in the trial court's finding that the conditions that led to A.Z.B.'s removal persist pursuant to § 2511(a)(8). Although Mother has advanced some efforts in an attempt to comply with her SCP objectives, as evidence by her persistent refusal to acknowledge her role in the abuse, Mother failed to ameliorate the underlying conditions such that reunification with A.Z.B. was "imminent at the time of the hearing." In re I.J., supra at 11 (emphasis omitted).
Furthermore, Mother has not advanced any specific challenge to the trial court's finding that termination would best serve the needs and welfare of the child pursuant to § 2511(a)(8). See Mother's brief at 6-9. However, we note that our review confirms the factual and legal soundness of the trial court's holding on this point.
Aside from the findings of child abuse and aggravated circumstances detailed above, it is also clear from the certified record that Mother is unable to provide the care that A.Z.B. requires. Beginning in October 2021, when A.Z.B. was approximately one and one-half years old, he began displaying "physical aggression behaviors." Permanency Review Order, 10/01/21. Ms. Wolfe explained that A.Z.B. suffers from "significant behavior issues" and that he "often struggles with verbal redirection and following directions." N.T., 7/19/23, at 29. Of particular note, Ms. Wolfe averred that A.Z.B.'s behavior problems would manifest during, inter alia, the child's supervised visitations with Mother. Id. During these incidents, Mother struggled to respond appropriately, often becoming agitated and resorting to harsh profanity. Id. at 28-29. In contrast, Ms. Wolfe testified that A.Z.B.'s foster mother is able to "calm him down" during his "tantrums." Id. at 44-45. Furthermore, Ms. Wolfe testified A.Z.B. is well-cared for in his foster home. Id. at 12-13. Hence, the trial court did not abuse its discretion in terminating Mother's parental rights pursuant to 2511(a)(8).
Having found that the certified record supports the trial court's termination of parental rights pursuant to § 2511(a)(8), we address the court's decision relative to § 2511(b), which requires that it "give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). Of note, we "should consider the matter from the child's perspective, placing [their] developmental, physical, and emotional needs and welfare above concerns for the parent." In the Interest of K.T., 296 A.3d 1085, 1105 (Pa. 2023). Moreover, this determination "should not be applied mechanically," but "must be made on a case-by-case basis," wherein "the court must determine each child's specific needs." Id. at 1106. Thus, there is no "exhaustive list" of factors that must be considered. Id. at 1113 n.28. While the particular facts of each case determine the factors to be considered, our precedent indicates that relevant points of inquiry include "intangibles such as love, comfort, security, and stability." T.S.M., supra at 267.
Our Supreme Court has mandated that an evaluation pursuant to § 2511(b) should consider the child's bond with his or her parent. See In re E.M., 620 A.2d 481 (Pa. 1993). However, it also held that "courts must not only consider the child's bond with the biological parent, but also examine the . . . love, comfort, security, and stability the child might have with the foster parent." K.T., supra at 1111 (emphasis in original; cleaned up). Thus, we consider factors that arise from the facts of each case, such as: (1) the child's need for permanency and length of time in foster care; (2) whether the child is bonded with foster parents; and (3) whether the foster home meets the child's needs. Id. at 1113. In sum, "bond, plus permanency, stability and all 'intangible' factors may contribute equally to the determination of a child's specific developmental, physical, and emotional needs and welfare, and thus are all of 'primary' importance in the Section 2511(b) analysis." Id. at 1109.
With respect to the trial court's bond analysis, we note that there is no evidence of a parental bond between Mother and A.Z.B. See N.T., 7/19/23, at 30 (indicating that Mother and A.Z.B.'s bond "exemplifies an aunt/nephew" relationship). Rather, A.Z.B.'s true parental relationship lies with his foster mother, who has been providing for his everyday needs for most of his life. Id. at 12-13. Ms. Wolfe opined that A.Z.B. would not suffer irreparable harm if Mother's parental rights were terminated due to Mother's "inability to maintain a consistent relationship with him throughout the life of the case as well as to rectify the issues that brought [A.Z.B.] into care." Id. at 32.
Viewing this information in conjunction with the findings pursuant to the third element of § 2511(a)(8) set forth above, the record amply supports the trial court's conclusion that involuntary termination of Mother's parental rights will best serve A.Z.B.'s developmental, physical and emotional needs and welfare. See 23 Pa.C.S. § 2511(b).
Overall, we observe no abuse of discretion or error law in the trial court's conclusion that involuntary termination of Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)(8) and (b) was supported by clear and convincing evidence. Thus, we affirm.
Decree affirmed.
Judge Dubow did not participate in the consideration or decision of this case.
Judgment Entered.