Opinion
1655 EDA 2023 1656 EDA 2023 1657 EDA 2023 1658 EDA 2023 1659 EDA 2023 1660 EDA 2023 J-S40001-23
01-10-2024
IN THE INTEREST OF: B.E.C., A MINOR APPEAL OF: L.C., MOTHER IN THE INTEREST OF: B.C., A MINOR APPEAL OF: L.C., MOTHER IN THE INTEREST OF: J.C., A MINOR APPEAL OF: L.C., MOTHER IN THE INTEREST OF: J.J.C., A MINOR APPEAL OF: L.C., MOTHER IN THE INTEREST OF: E.C., A MINOR APPEAL OF: L.C., MOTHER IN THE INTEREST OF: E.M.S.C., A MINOR APPEAL OF: L.C., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered May 25, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0001100-2018, CP-51-DP-001101-2018, CP-51-DP-0000282-2021
Appeal from the Decree Entered May 25, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000434-2022, CP-51-AP-0000435-2022, CP-51-AP-0000495-2022
BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J. [*]
MEMORANDUM
NICHOLS, J.
Appellant L.C. (Mother) appeals from the orders granting the petitions filed by the Philadelphia Department of Human Services (DHS) to involuntarily terminate Mother's parental rights to her minor children, B.E.C., born in July of 2013, J.J.C., born in July of 2016, and E.M.S.C., born in March of 2021 (collectively, the Children) and change the Children's permanency goal to adoption. Mother argues that DHS failed to present clear and convincing evidence supporting the termination of her parental rights and changing the Children's permanency goal to adoption. Further, Mother claims that the trial court failed to consider the Children's best interests by changing their permanency goal to adoption. Lastly, Mother contends that the termination of her parental rights violated her right to due process. We affirm.
We note that although the order also terminated Father's parental rights, he is not a party to the instant appeal.
Briefly, DHS has been involved with Mother and her family since at least 2017 when the Children's older siblings, who are not the subject of this appeal, were adjudicated dependent. DHS filed dependency petitions for B.E.C. and J.J.C. on May 3, 2018. On June 19, 2018, the trial court adjudicated B.E.C. and J.J.C. dependent and transferred the care and custody of B.E.C. and J.J.C. to DHS. DHS placed B.E.C. and J.J.C. in the care of a cousin (kinship care provider).
DHS filed a dependency petition for E.M.S.C. on March 22, 2021. The trial court adjudicated E.M.S.C. dependent and transferred the care and custody of E.M.S.C. to DHS on May 12, 2021. E.M.S.C. has been in foster care since then.
DHS filed petitions to terminate Mother's parental rights to B.E.C. and J.J.C. on July 18, 2022, and to E.M.S.C. on August 18, 2022. DHS also filed petitions to change the Children's permanency goals from reunification to adoption.
The trial court held a combined termination and goal change hearing on May 25, 2023. Mother appeared at the hearing with counsel. DHS presented the testimony of Community Umbrella Agency (CUA) case manager Christina Blakely. Mother testified on her own behalf.
Father also appeared at the hearing with counsel. At the termination hearing, James DeMarco, Esq., served as the Children's guardian ad litem (GAL) and Lisa Visco, Esq., appeared as the Children's legal counsel.
Ms. Blakely testified that she has worked with Mother and the Children for approximately three and a half years, first as an outcome specialist and then as the case manager. N.T., 5/25/23, at 7. Mother has multiple sclerosis (MS), which has left her wheelchair bound and unable to care for herself. Id. at 11-12, 69, 80-81. Because of the physical limitations caused by her MS, as of the date of the hearing, Mother is living at an acute care facility. Id. at 11, 42, 69. Mother's prognosis is poor because she is not expected to recover, and her physical condition will likely deteriorate further in the future. Id. At 69. Ms. Blakely explained that because of Mother's medical condition, her only case plan objectives are visitation with the Children and maintaining contact with CUA. Id. at 12-13.
Mother has supervised visitation with the Children twice per month either at the facility where she resides at or at the home of a relative. Id. at 42. Ms. Blakely opined that Mother could not have unsupervised visitation with the Children because she is not physically able to address the Children's needs such as changing E.M.S.C.'s diaper or intervening to prevent injury to any of the Children. Id. at 42-43, 69-70. Ms. Blakely observed that Mother is affectionate with the Children, connects with them emotionally, and "does the best that she can" to meet the Children's emotional needs. Id. at 70, 81-82. According to Ms. Blakely, Mother has a loving relationship with both B.E.C. and J.J.C., but Ms. Blakely also explained that B.E.C. and J.J.C. look to their kinship care provider as their parental figure. Id. at 43-47, 54-55.
B.E.C. and J.J.C. have been with their kinship care provider since the adjudication of dependency, and both expressed a desire for their kinship care provider to adopt them. Id. at 52, 54, 68, 76. When asked if termination of Mother's parental rights would cause any irreparable harm to B.E.C., Ms. Blakely responded: "Not that I could assess." Id. at 55. Regarding J.J.C., Ms. Blakely initially stated that she did not know if termination of Mother's parental rights would cause any irreparable harm to J.J.C., but later stated that termination would not cause any harm that she could "assess at this time." Id. at 45-46, 52. Ms. Blakely opined that adoption was in the best interests of both B.E.C. and J.J.C. Id. at 52, 55.
Ms. Blakely observed that E.M.S.C. will respond to Mother, but initially he would cry repeatedly when visiting with Mother. Id. at 60-61. By contrast, Ms. Blakely stated that E.M.S.C. has an affectionate bond with his resource parent. Id. at 61-62. Ms. Blakely believed that termination of Mother's parental rights would not cause any irreparable harm to E.M.S.C. because he lacks familiarity with Mother. Id. at 63. Ms. Blakely also opined that adoption is the best goal for E.M.S.C. Id.
Ms. Blakely discussed permanent legal custody (PLC) of B.E.C. and J.J.C. as an alternative to adoption with the kinship care provider. Id. at 85. The kinship care provider responded that she would prefer to adopt B.E.C. and J.J.C., but is willing to continue serving as a caregiver to B.E.C. and J.J.C. if the trial court decided that PLC was more appropriate. Id. at 85-86.
See 42 Pa.C.S. § 6351(a)(2.1).
Mother testified that she intends to move in with her mother (Maternal Grandmother). Id. at 123. Mother is waiting for Maternal Grandmother to modify her home to make it wheelchair accessible. Id. Mother did not know when the modifications to Maternal Grandmother's home would be completed. Id. at 124. Mother described her visitation time with B.E.C. and J.J.C. as loving and playful. Id. at 124-26. Mother also testified that E.M.S.C. often cries when he is with her, but she will comfort him, and he will smile at her. Id. at 127-28. Mother wishes to remain the legal mother of the Children. Id. at 128. Maternal Grandmother did not testify at the hearing.
At the conclusion of the testimony concerning the Children, the trial court placed its findings of fact and conclusions of law on the record. Id. at 165-72. The trial court observed that, throughout the previous five years, Mother was not able to reside in a location where she could live with the Children and, although Mother emotionally cares for the Children, Mother does not have the ability to meet the Children's daily needs. Id. at 167. The trial court concluded that termination of Mother's parental rights was in the Children's best interests under 23 Pa.C.S. § 2511(a)(2), (a)(5), (a)(8), and (b). Id. at 167-71. The court also concluded that DHS had proven that changing the Children's permanency goal to adoption was in the Children's best interests. Id. at 172.
Mother filed timely notices of appeal and complied with Pa.R.A.P. 1925(a)(2)(i). In lieu of a Rule 1925(a) opinion, the trial court issued a notice of compliance with Rule 1925(a) in which it referred to sections from the notes of testimony where the court stated its reasons for terminating Mother's parental rights on the record. Trial Ct. Rule 1925(a) Order, 8/4/23, at 1-2.
We emphasize that our standards of review require deference to the trial court's findings of fact and credibility determinations and that, generally, this requires the filing of an opinion pursuant to Pa.R.A.P. 1925(a). See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (noting that "there are clear reasons for applying an abuse of discretion standard of review in [dependency and termination of parental rights] cases" and acknowledging that "unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents" (citations omitted)); see also In re S.K.L.R., 256 A.3d 1108, 1124 (Pa. 2021) (emphasizing that "[w]hen a trial court makes a 'close call' in a fact-intensive case . . . the appellate court should not search the record for contrary conclusions or substitute its judgment for that of the trial court").
On appeal, Mother raises the following issues for our review, which we reorder as follows:
1. Whether the trial court erred and/or abused its discretion when it involuntary[ily] terminated Mother's parental rights, where such determination was not supported by clear and convincing evidence under the Adoption Act 23 Pa.C.S. § 2511(a)?
2. Whether the trial court erred or abused its discretion in proceeding to the [23] Pa.C.S. § 2511(b) determination that termination best meets the needs and welfare of the child when the Petitioner had not first met its burden under [Section] 2511(a)[?]
3. Whether the trial court erred and/or abused its discretion when it involuntarily terminated Mother's parental rights without giving primary consideration to the effect that the termination would have on the developmental, physical and emotional needs of the Child under Section 2511(b) of the Adoption Act?
4. Whether the trial court erred or abused its discretion in determining that Petitioner, DHS, had met its burden of proof by clear and convincing evidence that termination of Mother's parental rights best meets the needs and welfare of the child[?]
5. Whether Mother was denied due process by the trial court under both the Pennsylvania and United States Constitutions by the trial court's failure to, inter alia, apply strict scrutiny to the state's petition to terminate her fundamental rights to the care and control of her child(ren)[?]
6. Whether the trial court erred or abused its discretion in determining that Petitioner, DHS, had met its burden of proof that changing the child's permanency goal to adoption and
terminating Mother's rights would best serve the needs and welfare of the child, pursuant to the requirements of 42 Pa.C.S. § 6351[?]Mother's Brief at 7-8.
In her statement of questions, Mother raises six distinct questions. See Mother's Brief at 7-8. However, the argument section of Mother's brief is divided into five sections. See Pa.R.A.P. 2119(a) (stating that "[t]he argument shall be divided into as many parts as there are questions to be argued"). We do not condone Mother's failure to comply with the Rules of Appellate Procedure, but because the noncompliance does not impede our review, we decline to find waiver on this basis. See, e.g., Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super. 2013) (declining to find waiver on the basis of the appellant's failure to comply with the Rules of Appellate Procedure, where the errors did not impede this Court's review).
Mother argues that the trial court erred in concluding that DHS presented clear and convincing evidence to terminate her parental rights under Section 2511(a)(2). Mother's Brief at 21-22. Specifically, Mother argues that although it is "unlikely" that she would "ever be able to physically care for her children, she expects to soon remedy her living situation by moving into Maternal Grandmother's home where she will join [B.E.C. and J.J.C.], and to have the supports necessary to" reside with E.M.S.C. Id. at 22 (citing N.T., 5/25/23, at 123-24).
We begin with 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.In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted). "[T]he 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." In re Q.R.D., 214 A.3d 233, 239 (Pa. Super. 2019) (citation omitted).
Termination of parental rights is governed by Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, 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 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.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We note that we need only agree with the trial court as to any one subsection of Section 2511(a), as well as Section 2511(b), to affirm an order terminating parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Section 2511(a)(2) provides as follows:
§ 2511. Grounds for involuntary termination
(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.23 Pa.C.S. § 2511(a)(2).
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. The grounds for termination are not limited to affirmative misconduct, but concern parental incapacity that cannot be remedied.In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citations and quotation marks omitted).
Further, this Court has explained:
The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are "not limited to affirmative misconduct." In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).
Unlike subsection (a)(1), subsection (a)(2) does not emphasize a parent's refusal or failure to perform parental duties, but instead emphasizes the child's present and future need for essential parental care, control or subsistence necessary for his physical or mental well-being. Therefore, the language in subsection (a)(2) should not be read to compel courts to ignore a child's need for a stable
home and strong, continuous parental ties, which the policy of restraint in state intervention is intended to protect. This is particularly so where disruption of the family has already occurred and there is no reasonable prospect for reuniting it.
In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (internal citations and quotation marks omitted).In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010) (some citations omitted and formatting altered).
Regarding Section 2511(a)(2), the trial court stated:
In the case of [Mother], it's been demonstrated that [Mother] cannot remedy the situation. We were last in court in February. It was represented at that time that [Mother] was hopeful to be able to be moved into a different living environment where she might, at that time, be able to have the Children reside with her.
But from [sic] the five years of this case, [Mother] has not been able to reside in a location where she could have the Children with her, or that she could care for them. It is not the court's impression that [Mother] does not care for these Children, but she doesn't have the ability to do so. Being able to provide for them emotionally is not being able to meet all of their daily needs.N.T., 5/25/23, at 167 (some formatting altered).
Following our review, we conclude that the trial court's findings are supported by competent, clear, and convincing evidence in the record, and we find no error in the court's legal conclusions. See T.S.M., 71 A.3d at 267; see also L.M., 923 A.2d at 511. The record reflects that Mother suffers from a debilitating medical condition that has left her wheelchair bound and unable to physically care for herself or for the Children. See N.T., 5/25/23, at 11-12, 42-43, 69-70, 69, 80-81. It is further evident that Mother has provided affection and emotional support to the Children during her visitation periods. See id. at 47, 54-55, 60-61, 70, 81-82, 123-28. However, although we are sympathetic to Mother's medical condition and the limitations that it imposes, on this record, we conclude that DHS has established by clear and convincing evidence that Mother has a repeated and continued incapacity that has caused the Children to be without essential parental care, control or subsistence, and the cause of Mother's incapacity cannot be remedied. We note that this case has been active for five years and that on this record it is not clear when or if Maternal Grandmother's home will be modified to make it wheelchair accessible for Mother. Although we are empathetic to Mother's challenges, Children should not be expected to put their lives on hold waiting indefinitely for the needed changes in Mother's circumstances. See C.M.K., 203 A.3d at 262; see also Z.P., 994 A.2d at 1117 (explaining that Section 2511(a)(2) emphasizes a "child's present and future need for essential parental care, control or subsistence necessary for his [or her] physical or mental well-being" (citation omitted)).
For these reasons, we discern no abuse of discretion by the trial court in concluding that termination was appropriate under Section 2511(a)(2). Accordingly, we are constrained to conclude that Mother is not entitled to relief on this claim.
Section 2511(b)Mother also argues that DHS failed to present clear and convincing evidence to prove that termination was in the best interests of B.E.C. and J.J.C. Specifically, Mother argues that Ms. Blakely's testimony was uncertain as to whether the termination of Mother's parental rights would cause irreparable harm to B.E.C. and J.J.C. Mother's Brief at 20-21. Therefore, Mother concludes that the trial court abused its discretion by finding that termination was in the B.E.C. and J.J.C.'s best interests.
Because Mother does not present any argument as to whether DHS met is burden to establish that termination of her parental rights to E.M.S.C. was in his best interest, we limit our analysis to B.E.C. and J.J.C. In any event, for the reasons stated below, we discern no abuse of discretion or error or law in the trial court's decision to terminate Mother's parental rights with respect to E.M.S.C. under Section 2511(b). See T.S.M., 71 A.3d at 267.
Section 2511(b) provides as follows:
(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. . . .23 Pa.C.S. § 2511(b).
"[T]he focus in terminating parental rights is on the parent, under Section 2511(a), whereas the focus in Section 2511(b) is on the child." In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc) (citation omitted). This Court has explained:
While a parent's emotional bond with his or her child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent. Additionally, . . . the trial court should consider the importance of continuity of relationships . . . .In re C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations omitted and formatting altered), abrogated in part on other grounds by In re K.T., 296 A.3d 1085 (Pa. 2023).
Our Supreme Court has stated that "if the child has any bond with the biological parent, the court must conduct an analysis of that bond, which 'is not always an easy task.'" K.T., 296 A.3d at 1106 (quoting T.S.M., 71 A.3d at 267). In K.T., our Supreme Court explained that "a court conducting the Section 2511(b) needs and welfare analysis must consider more than proof of an adverse or detrimental impact from severance of the parental bond." Id. at 1113. Indeed, the K.T. Court emphasized that "the parental bond is but one part of the overall subsection (b) analysis, which includes a determination of whether the bond is necessary and beneficial to the child, i.e., whether maintaining the bond serves the child's developmental, physical, and emotional needs and welfare." Id.
"Common sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents." T.S.M., 71 A.3d at 268 (citation omitted). More specifically, courts must consider "the child's need for permanency and length of time in foster care[;] whether the child is in a pre[-]adoptive home and bonded with foster parents; and whether the foster home meets the child's developmental, physical and emotional needs, including intangible needs of love, comfort, security, safety, and stability." K.T., 296 A.3d at 1113 (footnote omitted).
In weighing the bond considerations pursuant to Section 2511(b), "courts must keep the ticking clock of childhood ever in mind." T.S.M., 71 A.3d at 269. "Children are young for a scant number of years, and we have an obligation to see to their healthy development quickly. When courts fail . . . the result, all too often, is catastrophically maladjusted children." Id.
Regarding Section 2511(b), the trial court stated:
I do believe that Parents have somewhat of an emotional connection with the Children, but what [Section] 2511(b) requires me to look at is whether there is a parent-child bond.
These Children don't look to their Parents to meet their needs of living. The Children . . . have relied on their foster and resource parents to provide them with all of their needs as children. They're not looking to the Parents to meet their daily needs. The fact that they may have an emotional relationship -- it is a type of relative relationship that they have with the Parents.
I understand that there are feelings that they have with the Parents, but they are not looking to the Parents to meet their parental needs. The Parents have not been meeting their parental needs for the last five years, and they haven't progressed anything beyond supervised visits with the Children, and have not been able to engage in any meaningful way to actually establish a parent-child bond with these Children over the last five years.N.T., 5/25/23, at 171 (some formatting altered).
Based on our review of the record, we discern no abuse of discretion by the trial court in concluding that termination of Mother's parental rights would best serve the Children's developmental, physical, and emotional needs and welfare. See T.S.M., 71 A.3d at 267. Although Ms. Blakely was equivocal as to whether severing Mother's bond with J.J.C. would harm J.J.C., it was for the trial court to resolve conflicts in the evidence and assess the credibility of witnesses. See Q.R.D., 214 A.3d at 239. This Court must accept the trial court's findings of fact and credibility determinations if they are supported by the record, and this Court may not substitute its judgment for that of the trial court in such matters. See S.K.L.R., 256 A.3d 1124; T.S.M., 71 A.3d at 267.
Further, as our Supreme Court explained in K.T., an analysis under Section 2511(b) is not limited to whether severing the parent-child bond will have a detrimental effect on the child. See K.T., 296 A.3d at 1113. The trial court must also consider other factors such as the child's need for permanency, the length of time the child has been in foster care, whether the child is in a pre[-]adoptive home, the child's bond with foster parent[s], and whether the foster home "meets the child's developmental, physical and emotional needs, including intangible needs of love, comfort, security, safety, and stability." See id.
Here, Ms. Blakely testified that both B.E.C. and J.J.C. have been placed with the same kinship care provider for several years, that they look to their kinship care provider as their parental figure, and they have expressed their desire for their kinship care provider to adopt them. See N.T., 5/25/23, at 43-47, 52, 54-55, 68, 76. Accordingly, on this record, we agree with the trial court that DHS presented clear and convincing evidence demonstrating that termination of Mother's parental rights would serve B.E.C. and J.J.C.'s best interests and no relief is due. See T.S.M., 71 A.3d at 267; L.M., 923 A.2d at 511.
Due Process
In her third claim, Mother argues that the termination of her parental rights violated her due process rights under both the Fourteenth Amendment to the United States Constitution and Article I, Sections 1 and 11 of the Pennsylvania Constitution. Mother's Brief at 14-17. Specifically, Mother contends that as a parent, she has a fundamental right to direct the care, custody and control of her children. Id. at 14. Mother claims that any state action to terminate that fundamental right is subject to strict scrutiny review, i.e., "the state must demonstrate a compelling interest and show that its actions are narrowly tailored to achieve that interest. . . . To survive strict scrutiny, a law must further the state's compelling interest by the least restrictive means practically available." Id. at 14-15 (citations omitted). Mother concedes that "ensuring a safe and permanent home for a child is a compelling [government] interest." Id. at 15 (citations omitted). However, Mother argues that the termination of her parental rights was not the least restrictive means available to achieve that interest because DHS could have instead requested that the trial court grant the kinship care provider PLC of B.E.C. and J.J.C. Id. at 15-16. Further, Mother contends that the termination of her parental rights to E.M.S.C. violated her due process rights because reunification with Mother or granting PLC to Maternal Grandmother were options available to the trial court. Id. at 14. Therefore, Mother concludes that the termination of her parental rights was a violation of her right to due process.
We note that "[p]ursuant to Pa.R.A.P. 521, Notice to Attorney General of Challenge to Constitutionality of Statute, when a party challenges the constitutionality of a statute, he or she must notify the State Attorney General Office. Failure to do so results in waiver of the claim." In re A.H., 763 A.2d 873, 880 (Pa. Super. 2000) (citation omitted and formatting altered). However, "[c]ompliance with Rule 521 is only required where a party makes a facial challenge to the constitutionality of a statute." Brown v. Halpern, 202 A.3d 687, 696 n.5 (Pa. Super. 2019) (citation omitted). "A facial challenge to the constitutionality of a statute is a claim alleging that a statute suffers an ineluctable constitutional deficiency. An as-applied challenge to the constitutionality of a statute is one asserting that the statute, even though it may generally operate constitutionally, is unconstitutional in a challenger's particular circumstances." McLinko v. Department of State, 279 A.3d 539, 551 n.16 (Pa. 2022) (citations omitted and formatting altered). Here, Mother has failed to notify the Attorney General of Pennsylvania. However, because we treat Mother's due process claim as an "as applied" challenge instead of a facial challenge to the termination of parental rights proceedings, we decline to find waiver. See generally Brown, 202 A.3d at 696 n.5.
In determining whether procedural due process violations have occurred, our standard of review is de novo and our scope of review is plenary. Due process of law is guaranteed by Article I, §[§ 1 and 11] of the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution and it protects life, liberty, and property. In assessing whether one has been unlawfully deprived of a protected right, a two-part inquiry must be undertaken. The threshold inquiry in any due process analysis is whether there exists any identifiable property or liberty interest at issue. Once this has been established, a determination must be made regarding the adequacy of the procedures employed by the state to deprive a person of that right.In re K.L., 286 A.3d 1267, 1271 (Pa. Super. 2022) (citations and footnote omitted and formatting altered).
Our Supreme Court has explained that
the right to make decisions concerning the care, custody, and control of one's children is one of the oldest fundamental rights protected by the Due Process Clause. Accordingly, any infringement of that right by the state must be reviewed by this Court pursuant to a strict scrutiny analysis, determining whether the infringement is narrowly tailored to effectuate a compelling state interest.
Obviously, termination of parental rights is the most extreme infringement of parental rights. Additionally, it is beyond cavil that the protection of children, and in particular the need to provide permanency for dependent children, is a compelling state interest. In balancing these interests, the General Assembly has created a detailed system setting forth the limited situations which would result in removal of children from their parents and termination of parental rights. Moreover, the statutory construct requires specific determinations by the trial court regarding the proper placement and permanency goals of the children at each step of the process. Ultimately, the grounds of termination must be demonstrated by the state by clear and convincing evidence. We conclude that this system is sufficiently narrowly tailored to protect a parent's fundamental right while also ensuring the safety and permanency needs of dependent children.In re D.C.D., 105 A.3d 662, 676-77 (Pa. 2014) (citations omitted and formatting altered); see also In re C.M., 255 A.3d 343, 358 (Pa. 2021) (explaining that "[a] parent's right to make decisions concerning the care, custody, and control of his or her children is among the oldest of fundamental rights. The time-tested law of the Commonwealth requires that we balance this intrinsic parental interest within the context of a child's essential needs for a parent's care, protection, and support" (citations omitted)).
Recently, this Court has addressed a challenge to the termination of parental rights on equal protection grounds. See In re A.R., --- A.3d ---, 2023 PA Super 243, 2023 WL 8226326 (Pa. Super. filed Nov. 28, 2023). In A.R., the mother argued that "the trial court's application of the Adoption Act to terminate her parental rights violated her right to equal protection under the law pursuant to the Pennsylvania and United States Constitutions by terminating her parental rights based solely on her intellectual disability." A.R., 2023 WL 8226326, at *5 (citation omitted). The mother contended that because she cannot alleviate her intellectual disability, the Adoption Act effectively "creates two classes of persons-those that are disabled and incapable of parenting such as herself-and those who are not disabled . . . ." Id. This Court held that the termination of the mother's parental rights was not an equal protection violation, explaining that the trial court "did not terminate [the] mother's parental rights just because she was intellectually disabled, but because it found that she was unable to care for the needs of the child. To hold otherwise would require us to focus on [the mother's] needs instead of the best interests of the child." Id. (footnote omitted and some formatting altered).
Under the Juvenile Act, a trial court may award PLC of a dependent child to any individual who the trial court finds to "be qualified to receive and care for the child." 42 Pa.C.S. § 6351(a)(2.1). Placement of a dependent child with a custodian who has PLC of the child is appropriate "in cases where the return to the child's parent, . . . or being placed for adoption is not best suited to the safety, protection and physical, mental and moral welfare of the child." Id. at § 6351(f.1)(3); see also In re S.H., 71 A.3d 973, 978 (Pa. Super. 2013) (explaining that "[i]n order for the court to declare the custodian a 'permanent legal custodian' the court must find that neither reunification nor adoption is best suited to the child's safety, protection and physical, mental and moral welfare" (citations omitted)).
The trial court did not address Mother's due process argument in its ruling from the bench or in its Rule 1925(a) order.
Based on our review of the record, we conclude that the termination of Mother's parental rights did not violate Mother's due process rights. See K.L. 286 A.3d at 1271. First, we disagree with Mother's argument that PLC was a less restrictive means to ensure that the Children had a safe and permanent home. Under the Juvenile Act, a trial court may only award PLC to the custodian of a child where "neither reunification nor adoption is best suited to the child's safety, protection and physical, mental and moral welfare." S.H., 71 A.3d at 978 (emphasis added); see also 42 Pa.C.S. § 6351(f.1)(3). For the reasons set forth above, we agree with the trial court that DHS presented clear and convincing evidence that termination of Mother's parental rights pursuant to Section 2511(a)(2) and (b) was in the best interests of the Children. Therefore, under the Juvenile Act, PLC was not available as a permanency goal for the Children. See S.H., 71 A.3d at 978; 42 Pa.C.S. § 6351(f.1)(3).
For those same reasons, we conclude that the termination hearing and the trial court's decrees comport with the due process protections included in the Adoption Act. See D.C.D. 105 A.3d at 676-77 (explaining that the requirement that the party must prove the grounds for termination of parental rights by clear and convincing evidence is narrowly tailored to protect a parent's fundamental right but also serves the important government interest in ensuring the safety and permanency needs of dependent children). We discern no violation of Mother's due process rights resulting from the application of the Adoption Act to the specific facts of these matters. See K.L. 286 A.3d at 1271; accord A.R., 2023 WL 8226326, at *5 (holding that the termination of parental rights did not violate the parent's right to equal protection under the United States and Pennsylvania Constitutions). Therefore, Mother is not entitled to relief on this claim.
Goal Change
Additionally, Mother argues that the trial court erred by changing the Children's permanency goals from reunification to adoption. Mother's Brief at 17-20. Specifically, Mother contends the trial court abused its discretion because it failed to adequately consider statutorily required factors regarding the Children's continued placement. Id. at 18-19. Mother also claims that DHS failed to show that changing the Children's permanency goal to adoption would best serve the needs and welfare of each child. Id. at 17.
However, given our disposition concerning the termination of Mother's parental rights, we conclude that her appeals from the goal change orders are moot. See In re D.R.-W., 227 A.3d 905, 917 (Pa. Super. 2020) (concluding that a goal change challenge is moot when this Court affirms the decree terminating parental rights); see also In re A.H., 247 A.3d 439, 446 (Pa. Super. 2021) (stating that "the effect of our decision to affirm the orphans' court's termination decree necessarily renders moot the dependency court's decision to change [a c]hild's goal to adoption" (citation omitted)). In any event, to the extent Mother claims that the trial court failed to give primary consideration to the Children's best interests, her claim is belied by the record for the reasons previously stated. Therefore, Mother is not entitled to relief on this claim.
Conclusion
We recognize the unfortunate reality that Mother's medical condition has left her unable to physically care for herself as well as the Children which has necessitated the trial court's difficult decision to terminate Mother's parental rights. Although Mother's situation is fraught with challenges, we note that our primary focus is on the Children who have been in care for up to five years. "In termination proceedings and appeals, the best interest of the children is always paramount." K.T., 296 A.3d at 1105 (citation omitted and formatting altered). For the foregoing reasons, we affirm the orders changing the Children's permanency goal from reunification to adoption and the decrees terminating Mother's parental rights.
Orders and decrees affirmed. Jurisdiction relinquished.
[*]Retired Senior Judge assigned to the Superior Court.