Opinion
J-S38002-17 No. 2786 EDA 2016 No. 2793 EDA 2016
06-20-2017
IN RE: S.R.S., A MINOR APPEAL OF: C.A.S., MOTHER IN RE: S.N.G., A MINOR APPEAL OF: C.A.S., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order and Decree July 25, 2016
In the Court of Common Pleas of Philadelphia County
Family Court Juvenile Division at No(s): CP-51-AP-0000018-2016, CP-51-DP-0001672-2013, FID: 51-FN-003313-2013 Appeal from the Order and Decree July 25, 2016
In the Court of Common Pleas of Philadelphia County
Family Court Juvenile Division at No(s): CP-51-AP-0000017-2016, CP-51-DP-0001511-2014, FID: 51-FN-003313-2013 BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, C.A.S. ("Mother"), appeals from the orders and the decrees, entered in the Philadelphia County Court of Common Pleas Family Court Juvenile Division, which changed the family goal to adoption and granted the petitions of the Department of Human Services ("DHS") for involuntary termination of Mother's parental rights to her minor children, S.R.S. and S.N.G. ("Children"). We affirm.
The trial court held a goal change and termination hearing for Children on July 25, 2016, changed the family goal from reunification to adoption, and involuntarily terminated Mother's parental rights to Children. Mother timely filed notices of appeal. Notwithstanding the initial appeal filing date, the appeal was not listed for disposition due to the delay in transmittal of the certified record to this Court. The certified record was first due on September 22, 2016. After initial contact with the trial court, it informed this Court that the trial court had not started the opinion yet. Following numerous requests for updates, this Court finally received the certified record on February 15, 2017. As a result, the briefing schedule for this case was delayed by nearly five months. Further delay occurred when Mother's counsel requested a thirty-day extension, but received only a two-week extension, and then failed to file Mother's appellate brief, which prompted this Court to file an abandonment order on April 3, 2017. Counsel untimely filed Mother's appellate brief on April 7, 2017; this Court vacated the abandonment order on April 12, 2017. We offer this procedural history to explain the delay in the resolution of this child-fast-track appeal. See In re T.S.M., 620 Pa. 602, 609 n.7, 71 A.3d 251, 255 n.7 (2013) (reproaching this Court for unexplained delays in disposition of cases involving at-risk children, causing them to remain in stasis for substantial, unnecessary time). --------
In its opinion, the Juvenile Court correctly set forth the relevant facts and procedural history of this case. We add only the following: procedurally, DHS filed petitions on January 7, 2016, to change the family goal from reunification to adoption and involuntarily terminate Mother's parental rights to Children. Mother timely filed notices of appeal and concise statements of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i) on August 23, 2016.
Mother raises two issues for our review:
THE [JUVENILE] COURT ERRED AND/OR ABUSED ITS DISCRETION BY ENTERING AN ORDER ON JULY 25, 2016,
INVOLUNTARILY TERMINATING THE PARENTAL RIGHTS OF MOTHER.... MORE SPECIFICALLY, THE [JUVENILE] COURT ABUSED ITS DISCRETION AS SUBSTANTIAL, SUFFICIENT AND CREDIBLE EVIDENCE WAS PRESENTED AT THE TIME OF TRIAL WHICH WOULD HAVE SUBSTANTIATED DENYING THE PETITION FOR GOAL CHANGE/TERMINATION. [DHS] HAS FAILED TO MEET ITS BURDEN FOR TERMINATION BY CLEAR AND CONVINCING EVIDENCE UNDER 23 PA.C.S.[A.] SECTIONS 2511(A)(1) AND (2) BECAUSE THE EVIDENCE WAS PRESENTED THAT [MOTHER] HAD SUBSTANTIALLY MET HER [FAMILY SERVICE PLAN] GOALS AND THEREBY REMEDIED HER SITUATION. FURTHERMORE, THE [JUVENILE] COURT ERRED BY FINDING THAT MOTHER DID NOT HAVE THE CAPACITY TO PARENT.(Mother's Brief at 5).
THE [JUVENILE] COURT ERRED AND/OR ABUSED ITS DISCRETION BY TERMINATING THE PARENTAL RIGHTS OF MOTHER AND CHANGING [CHILDREN'S] GOAL TO ADOPTION, PURSUANT TO 23 PA.C.S.A. SECTIONS 2511(B) WHERE DHS FAILED TO PROVE CLEAR AND CONVINCING EVIDENCE THAT INVOLUNTARY TERMINATING [MOTHER'S] PARENTAL RIGHTS AND GOAL CHANGE TO ADOPTION BEST SERVED THE EMOTIONAL NEEDS AND WELFARE OF...CHILDREN. EVIDENCE WAS PRESENTED THAT...CHILDREN HAD A BOND WITH...MOTHER WHICH WOULD BE HARMFUL TO...[CHILDREN] TO SEVER.
Appellate review of goal change decisions implicates the following principles:
On appeal, goal change decisions are subject to an abuse of discretion standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super. 2006).
In order to conclude that the trial court abused its discretion, we must determine that the court's judgment was "manifestly unreasonable," that the court did not apply the law, or that the court's action was "a result of partiality, prejudice, bias or ill will,"
Id. at 822-23 (internal citations omitted).as shown by the record. We are bound by the trial court's findings of fact that have support in the record. The trial court, not the appellate court, is charged with the responsibilities of evaluating credibility of the witnesses and resolving any conflicts in the testimony. In carrying out these responsibilities, the trial court is free to believe all, part, or none of the evidence. When the trial court's findings are supported by competent evidence of record, we will affirm, "even if the record could also support an opposite result."
The Juvenile Act controls the disposition of dependent children. In re R.P., 957 A.2d 1205, 1217 (Pa.Super. 2008). Section 6351 provides in relevant part:
§ 6351. Disposition of dependent child
* * *
(f) Matters to be determined at permanency hearing.—At each permanency hearing, a court shall determine all of the following:
(1) The continuing necessity for and appropriateness of the placement.
(2) The appropriateness, feasibility and extent of compliance with the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current placement goal for the child.
(5) The likely date by which the placement goal for the child might be achieved.
(5.1) Whether reasonable efforts were made to finalize the permanency plan in effect.
(6) Whether the child is safe.
* * *
(9) If the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the child's parent, guardian or custodian or to preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the needs and welfare of the child; or
(iii) the child's family has not been provided with necessary services to achieve the safe return to the child's parent, guardian or custodian within the time frames set forth in the permanency plan.
* * *
(f.1) Additional determination.—Based upon the determinations made under subsection (f) and all relevant evidence presented at the hearing, the court shall determine one of the following:
(1) If and when the child will be returned to the child's parent, guardian or custodian in cases where the return of the child is best suited to the safety, protection and physical, mental and moral welfare of the child.
(2) If and when the child will be placed for adoption, and the county agency will file for termination of parental rights in cases where return to the child's parent, guardian or custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(3) If and when the child will be placed with a legal custodian in cases where the return to the child's parent, guardian or custodian or being placed for adoption is not best suited to the safety, protection and physical, mental and moral welfare of the child.
(4) If and when the child will be placed with a fit and willing relative in cases where return to the child's parent, guardian or custodian, being placed for adoption or being placed with a legal custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
* * *
(f.2) Evidence.—Evidence of conduct by the parent that places the health, safety or welfare of the child at risk, including evidence of the use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk, shall be presented to the court by the county agency or any other party at any disposition or permanency hearing whether or not the conduct was the basis for the determination of dependency.
(g) Court order.—On the basis of the determination made under subsection (f.1), the court shall order the continuation, modification or
termination of placement or other disposition which is best suited to the safety, protection and physical, mental and moral welfare of the child.42 Pa.C.S.A. § 6351(f), (f.1), (f.2), (g).
"When the child welfare agency has made reasonable efforts to return a [dependent] child to [the child's] biological parent, but those efforts have failed, then the agency must redirect its efforts towards placing the child in an adoptive home." In re N.C., supra at 823 (citing In re G.P.-R., 851 A.2d 967, 973 (Pa.Super. 2004)).
Although the agency has the burden to show a goal change would serve the child's best interests, "[s]afety, permanency, and well-being of the child must take precedence over all other considerations" under Section 6351. In re D.P., 972 A.2d 1221, 1227 (Pa.Super. 2009), appeal denied, 601 Pa. 702, 973 A.2d 1007 (2009) (emphasis in original); In re S.B., 943 A.2d 973, 978 (Pa.Super. 2008), appeal denied, 598 Pa. 782, 959 A.2d 320 (2008). "[T]he parent's rights are secondary" in a goal change proceeding. In re D.P., supra.
Because the focus is on the child's best interests, a goal change to adoption might be appropriate, even when a parent substantially complies with a reunification plan. In re N.C., supra at 826-27. Where a parent's "skills, including her judgment with regard to the emotional well-being of her children, remain problematic[,]" a goal change to adoption might be appropriate, regardless of the parent's compliance with a permanency plan. Id. at 825. The agency is not required to offer services indefinitely, where a parent is unable to properly apply the instruction provided. In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002). See also In re S.B., supra at 981 (giving priority to child's safety and stability, despite parent's substantial compliance with permanency plan); In re A.P., 728 A.2d 375, 379 (Pa.Super. 1999), appeal denied, 560 Pa. 693, 743 A.2d 912 (1999) (holding where, despite willingness, parent cannot meet "irreducible minimum parental
responsibilities, the needs of the child must prevail over the rights of the parent"). Thus, even where the parent makes earnest efforts, the "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." In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006).In re R.M.G., 997 A.2d 339, 347 (Pa.Super. 2010), appeal denied, 608 Pa. 648, 12 A.3d 372 (2010) (some internal citations and quotation marks omitted).
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).
DHS filed a petition for the 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:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
* * *
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
* * *
(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.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). "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).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the
parent's explanation for...her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations omitted). Regarding the six-month period prior to filing the termination petition:
[T]he trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of...her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.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).
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., supra at 337. "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 12 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., supra at 855 (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 [herself] 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 [the child's] physical and emotional needs.
After a thorough review of the record, the briefs of the parties, the applicable law, and the opinion of the Honorable Lyris F. Younge, we conclude Mother's issues merit no relief. The Juvenile Court opinion comprehensively discusses and properly disposes of the questions presented. ( See Juvenile Court Opinion, filed February 10, 2017, at 5-8) (finding: DHS removed Children from Mother's care because Mother was homeless and unable to feed Children or perform parental functions; Mother's Single Case Plan objectives required her to complete parenting classes, find appropriate housing, comply with dual diagnosis services, obtain and maintain employment, attend supervised visitation with Children, and attend court-ordered parenting capacity evaluation ("PCE"); DHS referred Mother to Dr. Williams for PCE to determine Mother's capacity to provide safety and permanency for Children; Dr. Williams testified that she had concerns about Mother's ability to accept responsibility for Children's removal from Mother's care; Dr. Williams further testified Mother did not understand how her behavior affected Children; at time of July 2015 PCE, Mother had been unemployed for substantial period and lacked appropriate housing; at July 2016 termination hearing, Mother still had not obtained appropriate housing for Children; Mother failed to attend and/or schedule recommended anger management classes; Family School suspended Mother for accessing Facebook and displaying sexual pictures during class; DHS social worker testified that Mother lacked ability to perform parental duties, provide Children with safety and care, or adequately address S.R.S.'s developmental and behavioral needs; DHS social worker further testified that Mother could not maintain consistent housing or establish realistic housing budget; Mother resided with various paramours who refused to submit to appropriate DHS clearances; Mother conceded she lacked appropriate housing for Children and prioritized relationships with paramours over Children's needs; Mother failed to achieve unsupervised visitation with Children; S.R.S. has not lived with Mother since S.R.S.'s adjudication in August 2013, and S.N.G. has not ever lived with Mother; Children share parental bond with foster parent; foster parent satisfies Children's daily needs; social worker testified Children would not suffer irreparable harm if court terminated Mother's parental rights to Children; S.R.S. and Mother share bond; Mother's bond with S.R.S., however, is not parental bond; Mother is merely visitation resource for Children, not permanency resource; testimony of DHS witnesses supported change of permanency goal from reunification to adoption; termination of Mother's parental rights is in Children's best interests and proper under Sections 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b)). Accordingly, we affirm on the basis of the Juvenile Court's opinion.
Orders and decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/20/2017
Image materials not available for display.