Opinion
J-S08045-17 No. 1613 WDA 2016 No. 1614 WDA 2016
02-13-2017
IN RE: THE INTEREST OF: H.C., MINOR CHILD APPEAL OF: A.C., MOTHER IN RE: THE INTEREST OF: L.C., MINOR CHILD APPEAL OF: A.C., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 23, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000060-2016 Appeal from the Order Entered September 23, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000061-2016 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, A.C. ("Mother"), appeals from the orders entered in the Allegheny County Court of Common Pleas Orphans' Court, which granted the petitions filed by the Allegheny County Office of Children, Youth, and Families ("CYF") for involuntary termination of Mother's parental rights to her minor children, H.C. and L.C. ("Children"). We affirm.
In its opinions, the Orphans' Court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Mother raises six issues on appeal:
(1) DID THE [ORPHANS'] COURT ABUSE ITS DISCRETION AND ERR IN GRANTING THE PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL...RIGHTS PURSUANT TO 23 PA.C.S.A. § 2511(A)(2), (5) AND (8)?
(2) DID THE [ORPHANS'] COURT ABUSE ITS DISCRETION AND ERR IN NOT DETERMINING SPECIFICALLY BY CLEAR AND CONVINCING EVIDENCE THAT CHILDREN WOULD NOT BE ADVERSELY AFFECTED BY SEVERANCE OF THE STRONG BOND EXTANT BETWEEN [MOTHER] AND THESE CHILDREN?
(3) DID THE [ORPHANS'] COURT ABUSE ITS DISCRETION AND ERR AS A MATTER OF LAW IN DETERMINING THAT PLACEMENT WITH THE FOSTER PARENTS IN THIS CASE (AND ADOPTIVE RESOURCE) WOULD BE IN THE BEST INTERESTS OF THESE CHILDREN?
(4) DID THE [ORPHANS'] COURT ABUSE ITS DISCRETION AND ERR AS A MATTER OF LAW IN FINDING THAT THE INVOLUNTARY TERMINATION OF FATHER'S PARENTAL RIGHTS WAS APPROPRIATE THUS PREVENTING RETURN OF CHILDREN TO THE FAMILY AND ABRIDGING MOTHER'S RIGHTS ALSO?
(5) DID THE [ORPHANS'] COURT ABUSE ITS DISCRETION AND ERR AS A MATTER OF LAW IN DETERMINING THAT THE INVOLUNTARY TERMINATION OF [MOTHER'S] PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.A. § 2511(A)(2), (5) AND (8) OF THE ADOPTION ACT BEST SERVES THE NEEDS AND WELFARE OF THESE CHILDREN?
(6) DID THE [ORPHANS'] COURT ABUSE ITS DISCRETION AND ERR AS A MATTER OF LAW IN DETERMINING THAT THE INVOLUNTARY TERMINATION OF [MOTHER'S] PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.A. §
2511(A)(2), (5) AND (8) WAS IN THE BEST INTERESTS OF THESE CHILDREN?(Mother's Brief at 5-6).
To the extent Mother's issue #4 complains on appeal about the termination of either birthfather's parental rights to Children, Mother is not the proper party to make that argument. See generally In re T.J., 559 Pa. 118, 124, 739 A.2d 478, 481 (1999) (stating: "In determining whether a party has standing, a court is concerned only with the question of who is entitled to make a legal challenge and not the merits of that challenge"; "the purpose of the 'standing' requirement is to insure that a legal challenge is by a proper party"). Therefore, we give Mother's issue #4 no further attention. --------
Appellate review of termination of parental rights cases implicates the following principles:
In cases involving termination of parental rights: "our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child."In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. ... We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).
Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility
of witnesses and all conflicts in testimony are to be resolved by the finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165 (2008)).
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations and quotation marks omitted). The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). If the court's findings are supported by competent evidence, we must affirm the court's decision, even if the record could support an opposite result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super. 2004).
CYF filed a petition for involuntary termination of Mother's parental rights to Children on the following grounds:
§ 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.
(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.
(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.
23 Pa.C.S.A. § 2511(a)(2), (a)(5), (a)(8), and (b).
(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.
"Parental rights may be involuntarily terminated where any one subsection of Section 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions." In re Z.P., supra at 1117.
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...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.In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
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; to the contrary those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). "Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities." Id. at 340. The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger , 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced that under what is now Section 2511(a)(2), "the petitioner for involuntary termination must prove (1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied." In Interest of Lilley , 719 A.2d 327, 330 (Pa.Super. 1998).
"Termination of parental rights under Section 2511(a)(5) requires that: (1) the child has been removed from parental care for at least six months; (2) the conditions which led to removal and placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Z.P., supra at 1118.
"[T]o terminate parental rights under Section 2511(a)(8), the following factors must be demonstrated: (1) [t]he child has been removed from parental care for [twelve] months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super. 2003). "Section 2511(a)(8) sets a 12-month time frame for a parent to remedy the conditions that led to the children's removal by the court." In re A.R., 837 A.2d 560, 564 (Pa.Super.2003). Once the 12-month period has been established, the court must next determine whether the conditions that led to the child's removal continue to exist, despite the reasonable good faith efforts of the Agency supplied over a realistic time period. Id. Termination under Section 2511(a)(8) does not require the court to evaluate a parent's current willingness or ability to remedy the conditions that initially caused placement or the availability or efficacy of Agency services. In re Adoption of T.B.B., 835 A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P., supra.
Under Section 2511(b), the court must consider whether termination will meet the child's needs and welfare. In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006). "Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond." Id. Significantly:
In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.In re Z.P., supra at 1121 (internal citations omitted).
When conducting a bonding analysis, the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation.
"The statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state, may properly be considered unfit and have...her rights terminated." In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the
child. Thus, this [C]ourt has held that the parental obligation is a positive duty which requires affirmative performance.In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted). "[A] parent's basic constitutional right to the custody and rearing of...her child is converted, upon the failure to fulfill...her parental duties, to the child's right to have proper parenting and fulfillment of [the child's] potential in a permanent, healthy, safe environment." Id. at 856.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of...her ability, even in difficult circumstances. 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.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Donald R. Walko, Jr., we conclude Mother's remaining issues merit no relief. The trial court opinions comprehensively discuss and properly dispose of the questions presented. ( See Orphans' Court Opinions, filed November 17, 2016, at 11-15 and 9-13 respectively) (finding: during two year period since Children's placement with maternal grandparents, Mother made minimal progress with her family service plan goals; court had serious concerns about Mother's ability to provide stable environment necessary for Children's physical and mental wellbeing; Mother admitted during proceedings she struggled to achieve sobriety, was homeless at times, and was convicted and sentenced to probation for prostitution; these behaviors are not safe or conducive to Children's wellbeing and display repeated and continued incapacity to provide Children with essential care; Mother acknowledged to Dr. O'Hara on March 22, 2016, that Mother was not in position to care for Children; record suggests Mother is still struggling to achieve and maintain sobriety; Mother had opportunity for two years to remedy her problems and adequately support Children's needs, but she failed to do so; Dr. O'Hara testified adoption outweighs any potential detriment related to termination of Mother's parental rights to Children; Children's secure attachment is to maternal grandparents, who provide stable and nurturing environment for Children; Children have spent majority of their lives in maternal grandparents' care; Mother's lack of stability poses threat to Children's emotional and behavioral needs; Mother attended only 70% of her scheduled visits with Children; H.C. reported his desire to reside with maternal grandparents and said he does not enjoy visits with Mother; court found no substantial bond existed between Mother and Children; termination of Mother's parental rights best serves Children's developmental, physical, and emotional needs; termination of Mother's parental rights was proper pursuant to Sections 2511(a)(2), (a)(5), (a)(8), and (b)). Accordingly, we affirm on the basis of the Orphans' Court's opinions.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/13/2017
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