Opinion
J-S46017-18 No. 934 EDA 2018
08-21-2018
IN THE INTEREST OF: S.H.,B.H.,T.H., MINORS APPEAL OF: L.D., MOTHER AND B.H., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decrees Entered February 21, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at No(s): CP-45-DP-0000060-2015, CP-45-DP-0000061-2015, CP-45-DP-0000062-2015 BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J. MEMORANDUM BY SHOGAN, J.:
L.D. ("Mother") and B.H. ("Father") appeal the decrees terminating their parental rights to their daughters, S.H. (born in July of 2010) and T.H. (born in September of 2008), and their son, B.H. (born in June of 2011) (collectively, "the Children"). We affirm.
Our rules of appellate procedure provide that, "[w]here . . . one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed." Pa.R.A.P. 341, Note (citing Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa. Super. 2007)). Similarly, Pa.R.A.P. 301(b) requires that "[e]very order shall be set forth on a separate document." Recently, the Pennsylvania Supreme Court held "that prospectively, where a single order resolves the issues arising on more than one docket, separate notices of appeal must be filed for each case." Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018).
In the case at hand, the orphans' court entered three decrees terminating parental rights on three different dockets, but Mother and Father filed a single notice of appeal. "Generally, such an appeal will not be quashed if (1) the issues in the separate orders are nearly identical, (2) no objections to the appeal are raised, and (3) the appeal period has expired." West Pa. Digest, Appellate Practice § 512:2 (footnotes omitted).
Walker is a criminal case involving one notice of appeal for a single order disposing of three dockets. The case before us is a Family Fast Track and involves one notice of appeal for three decrees. In light of these substantive and procedural differences, we consider Walker inapposite. Furthermore, the issues in the separate termination decrees are identical, no objections to the single appeal are raised, and the appeal period has expired. Therefore, we shall entertain this appeal. Nevertheless, we remind counsel that compliance with Pa.R.A.P. 301(b) is mandatory.
Finally, we see no impediment to Mother and Father filing a joint notice of appeal. Mother and Father are severally interested in the decrees terminating their parental rights to their three children and their grounds for appeal are similar; therefore, they "may join as appellants in a single appeal[.]" Pa.R.A.P. 512. Moreover, we are satisfied with the explanation for the public defender's dual representation of Mother and Father provided in response to our Rule to Show Cause. Appellant's Answer to Rule to Show Cause, 6/6/18, at ¶¶ 2-6.
In an opinion filed on April 23, 2018, the orphans' court provided a thorough recitation of the facts and procedural history of this case. Orphans' Court Opinion, 8/23/18, at unnumbered 1-9. Given that recitation and the parties' familiarity with these matters, we provide the following summary: Monroe County Children and Youth Services ("CYS") took the Children into protective custody on June 11, 2015, at which time Mother faced drug charges and Father was incarcerated. N.T., 2/21/18, at 11-12, 44. Following a shelter care hearing on June 16, 2015, Paternal Grandmother became a resource for the Children and assumed legal and physical custody of them. Id. at 12-13. Due to financial constraints and personal issues, Paternal Grandmother ceased being a resource on May 14, 2016, at which time both Mother and Father were incarcerated, and no other family members were available to care for the Children. Consequently, CYS assumed protective custody of the Children and placed them in foster care. Id. at 14. Following a dependency hearing on May 26, 2016, the Children were adjudicated dependent; since that hearing, they have remained dependent and in care with the same foster mother, C.S. Id. at 14-16, 33.
Paternal Grandmother voluntarily withdrew from the Children's lives in February of 2017. N.T., 2/21/18, at 24. Mother was incarcerated from June of 2015 to June of 2017, at which time she was released to a halfway house; she will be on parole until June 11, 2021. Id. at 20, 25-26, 34, 74, 85, 89. Father was incarcerated since before the Children were adjudicated dependent and throughout the underlying proceedings. Id. at 12, 23, 26-27. While incarcerated in Pennsylvania, Father had several visits with the Children. Id. at 23, 25, 35, 40-41, 55. Father is eligible for release in February of 2019, after which he will be under federal supervision until 2021. Id. at 23, 26-27, 35, 49, 57, 67.
CYS sent letters to Mother and Father in early October of 2017, notifying them that CYS would be filing petitions for termination of their parental rights. N.T., 2/21/18, at 28-29. CYS then filed the termination petitions in late October of 2017, with service of Mother on November 15, 2017, and of Father on December 13, 2017. Id. at 9-10. CYS conducted a foster home visit on November 16, 2017; the caseworker observed that the Children were bonded to C.S. Id. at 29-30, 33-34. C.S. told the caseworker she wants to be an adoptive resource for the Children. Id. at 33. On February 9, 2018, almost eight months after her release from prison and four months post-petitions for termination, Mother visited the Children; she acted appropriately and brought the Children gifts. Id. at 31-32, 35.
The orphans' court appointed the Children's Guardian Ad Litem, Brandie J. Belanger, Esq., as their legal counsel. Order, 10/26/17. A child's guardian ad litem may serve also as his or her legal counsel, so long as there is no conflict between a child's best and legal interests. In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017); In re D.L.B., 166 A.3d 322, 329 (Pa. Super. 2017). Our review of the record reveals there is no conflict between the Children's best and legal interests:
MS. BELANGER: . . . I have met with the [C]hildren. . . . They are happy and content living with [C.S.] and they are looking forward to her being their forever mom.N.T., 2/21/18, at 51. Therefore, we need not remand for the appointment of separate counsel.
THE COURT: Okay, then for the record . . . there is no issue or difference of opinion between . . . what's best for the [C]hildren and their desires, right?
MS. BELANGER: No Your Honor.
The orphans' court conducted a termination hearing on February 21, 2018. At that point, the Children had been in foster care for twenty-two months. N.T., 2/21/18, at 93. Based on the evidence presented at the hearing, the orphans' court concluded that CYS established grounds for termination of Mother's and Father's parental rights under subsections 2511(a)(1), (2), (5), (8), and 2511(b). Id. at 96-105. Mother and Father appealed and, along with the orphans' court, complied with Pa.R.A.P. 1925.
On appeal, Mother and Father state two questions for our consideration:
Did [CYS] fail to present clear and convincing evidence that termination of parents' parental rights served the needs and interests of their [children]?Mother and Father's Brief at 12.
Did [orphans'] court err in terminating parental rights without clear and convincing evidence that termination of parents' parental rights served the needs and interests of their children?
In reviewing an appeal from an order terminating parental rights, we adhere to the following principles:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; In re R.I.S., 614 Pa. 275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel-Bassett v. Kia Motors America , Inc., 613 Pa. 371, 455, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely , 575 Pa. 647, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed 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. R.J.T., 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio , 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).In re I.E.P., 87 A.3d 340, 343-344 (Pa. Super. 2014) (quoting In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012)).
The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We have explained that the "standard of clear and convincing evidence is defined as testimony 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.'" Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)). Moreover, this Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Here, the orphans' court terminated Mother's and Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Orphans' Court Opinion, 4/23/18, at unnumbered 27, 28. We focus our review on subsections (a)(1), (2), and (b), which provide 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:
(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.
* * *
23 Pa.C.S. § 2511. This Court has explained that the focus in terminating parental rights under section 2511(a) is on the parent, but under section 2511(b), the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
(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.
Mother and Father complain that CYS "provided no testimony regarding a lack of bond between [Mother] and [Father] and the [C]hildren." Mother and Father's Brief at 15. Moreover, they argue, "[Mother and Father] have been incarcerated through the majority of this case and have taken parenting and drug classes while they were incarcerated. [CYS] has failed to prove that [the Children's] needs and welfare will be served by terminating [Mother's and Father's] parental rights." Mother and Father's Brief at 15-16. In addressing each of the subsection grounds for termination relied upon by the orphans' court, Mother and Father offer excuses for their failure to parent and plans for remedying the circumstances that led to the Children's dependency.
In response, the orphans' court has provided a thorough evaluation supporting termination of Mother's and Father's parental rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). Having reviewed the notes of testimony and the certified record, we conclude that the orphans' court's findings and conclusions are supported by clear and convincing evidence of record, and we adopt the orphans' court opinion as our own.
The parties are directed to attach a copy of the orphans' court's opinion of April 23, 2018, to any future filings in this matter.
Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/21/18
Image materials not available for display.