Opinion
J-S62037-15 No. 779 WDA 2015 No. 780 WDA 2015
11-24-2015
IN RE: P.A.R. APPEAL OF: A.C., BIOLOGICAL MOTHER IN RE: X.J.R. APPEAL OF: A.C., BIOLOGICAL MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order March 31, 2015
In the Court of Common Pleas of McKean County
Orphans' Court at No(s): 42-14-0221 Appeal from the Order March 31, 2015
In the Court of Common Pleas of McKean County
Orphans' Court at No(s): 42-14-0221-1 BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, A.C. ("Mother"), appeals from the orders entered in the McKean County Court of Common Pleas, which granted the petitions of McKean County Children and Youth Services ("CYS"), for involuntary termination of Mother's parental rights as to her twin minor children, P.A.R. and X.J.R. ("Children"). We affirm.
The relevant facts and procedural history of this case are as follows. Children were born in January 2014. On February 1, 2014, Father placed X.J.R. in scalding hot water in an attempt to bathe him, which caused X.J.R. to suffer burns to his hands and feet. At the time, Father was under the influence of marijuana, and Mother was recovering from an infection sustained during her cesarean section. Father claimed he filled a container with water, placed it on the changing table next to X.J.R., stepped away for a moment, and upon his return, saw that X.J.R. was wet, crying, and had burns on his hands and feet. Police investigated the incident and discovered drugs and drug paraphernalia in Mother and Father's home. The condition of the home was also in complete disarray, as there were clothes and baby items scattered throughout the home and on the floor, drug paraphernalia out in the open, a cockroach infestation, and dirty dishes scattered everywhere.
CYS filed petitions for emergency custody of Children on February 3, 2014, which the court granted following a hearing on February 5, 2014. Thereafter, CYS filed dependency petitions for Children on February 12, 2014. After a two-day hearing on the petitions, as well as the Master's recommendation that Children be found dependent, the court deemed Children dependent on April 9, 2014. On October 16, 2014, CYS filed petitions for involuntary termination of Mother and Father's parental rights. The court held termination proceedings on January 14, 2015 and January 27, 2015. The court granted CYS' petitions on March 31, 2015, and involuntarily terminated Mother and Father's parental rights to Children. On April 27, 2015, Mother timely filed notices of appeal at both docket numbers, as well as concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). This Court subsequently consolidated Mother's appeals.
Father is not a party to this appeal. --------
Mother raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED IN REFUSING TO ENTERTAIN BIOLOGICAL MOTHER'S MOTION FOR A COMPULSORY NONSUIT AT THE CLOSE OF [CYS'] CASE, WITH RESPECT TO [CYS'] CLAIM UNDER 23 PA.C.S. § 2511(A)(5) AND 23 PA.C.S. § 2511(A)(1)[.](Mother's Brief at 3-4).
WHETHER THE TRIAL COURT'S REFUSAL TO RULE ON BIOLOGICAL MOTHER'S MOTION FOR A COMPULSORY NONSUIT PREJUDICED BIOLOGICAL MOTHER BY IMPROPERLY SHIFTING THE BURDEN OF PROOF AT TRIAL[.]
WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE EVIDENCE ADMITTED AT TRIAL WAS SUFFICIENT TO SUPPORT AN INVOLUNTARY TERMINATION OF PARENTAL RIGHTS[.]
Appellate review in 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).
In issues one and two combined, Mother argues her motion for a compulsory nonsuit should have been granted, and she was prejudiced by the court's refusal to rule on her motion. Specifically, Mother contends CYS' petitions for involuntary termination of her parental rights failed to establish a right to relief under 23 Pa.C.S.A. § 2511(a)(1) and (a)(5). Mother alleges the court failed to identify what conditions led to the removal of Children and whether those conditions were alleviated. Mother claims the evidence introduced pursuant to Section 2511(a)(5) showed the conditions which led to the removal of Children had been alleviated in less than two months after CYS filed the dependency petitions. Mother also complains the evidence introduced in support of Section 2511(a)(1) did not establish that she failed to perform her parental duties for a continuous six months prior to CYS' filing the termination petitions. Mother insists the court failed to identify when Mother's cooperation with the reunification plan began to decline. Mother further asserts the evidence did not prove she had a settled plan to relinquish her parental rights or refused to perform her parental duties. Mother maintains the court erred in not granting her motion for a compulsory nonsuit. Mother concludes this Court should vacate and remand for a new hearing on only the grounds for which CYS established a right to relief.
Mother also argues the court's refusal to rule on her motion for a compulsory nonsuit prejudiced her because it caused the burden of proof to be improperly shifted to Mother. Mother claims her presentation of evidence would have significantly changed if the court had granted her motion. Mother asserts the court's failure to decide her motion forced her to introduce evidence she otherwise would not have introduced only to disprove CYS' Section 2511(a)(1) and (a)(5) claims. Mother maintains her defense to CYS' Section 2511(a)(2) claim was prejudiced. Mother concludes this Court should vacate and remand for a new hearing. We disagree with Mother's contentions.
"'[T]he trial court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief.'" In re Estate of Boardman , 80 A.3d 820, 822 (Pa.Super. 2013) (quoting Keffer v. Bob Nolan's Auto Service , Inc., 59 A.3d 621, 631 (Pa.Super. 2012). See Pa.R.C.P. 230.1(a)(1). "[C]ompulsory nonsuit may be entered only in cases where it is clear that the plaintiff has not established a cause of action.... When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action." Id. (quotation marks omitted). "The court in deciding the motion shall consider only evidence which was introduced by the plaintiff and any evidence favorable to the plaintiff introduced by the defendant prior to the close of the plaintiff's case." Pa.R.C.P. 230.1(a)(2).
Moreover, regarding involuntary termination of parental rights, the Pennsylvania Consolidated Statutes provide, in relevant part:
§ 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.
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(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.
23 Pa.C.S.A. § 2511 (a)(1), (5); (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.
(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)...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.
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.
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal emphasis added). Regarding the six-month period prior to filing the termination petition:
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).
[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). Furthermore, "[t]ermination 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.
Under Section 2511(b), the court must consider "whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child." In re T.D., 949 A.2d 910, 920 (Pa.Super. 2008). "Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child." In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006). "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. "It is universally agreed that the bond of parental affection is unique and irreplaceable." In re Diaz , 669 A.2d 372, 377 (Pa.Super. 1995).
When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is prima facie in the best interest of the child, and the state has no justification to terminate that bond. On the other hand, a court may properly terminate parental bonds which exist in form but not in substance when preservation of the parental bond would consign a child to an indefinite, unhappy, and unstable future devoid of the irreducible minimum parental care to which that child is entitled.Id. (quoting In re J.W., supra at 958) (emphasis in original).
"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 may properly 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.
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.In re B., N.M., supra (internal citations and quotation marks 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...her potential in a permanent, healthy, safe environment." Id. at 856.
Instantly, Mother moved for a compulsory nonsuit at the conclusion of CYS' case during the termination proceedings. The court failed to rule formally on Mother's motion, which it acknowledged in its Rule 1925(a) opinion. The court concluded, however, that this error was harmless and did not prejudice Mother, as CYS had presented sufficient evidence for involuntary termination of Mother's parental rights. In its Rule 1925(a) opinion, the court discussed its findings as follows:
[W]ithout considering the evidence present by Mother[,] there was sufficient evidence for [CYS] to establish a cause of action. [CYS] presented evidence to establish that Mother initially[,] and at least to some extent[,] cooperated with reunification efforts. She initially attended visits and participated in several programs to attempt to
address her mental health and drug and alcohol concerns. However, this initial cooperation waned and very serious concerns regarding her attitude and motivation thereafter resurfaced and remained. [CYS] witnesses testified that Mother was consistently detached from [C]hildren during visits; and, she failed to grasp understanding and comprehension of necessary and common sense parenting skills and responsibilities. She was...given the opportunity to address her personal and parenting concerns and she has failed to do so. [CYS] demonstrated that there was a repeated pattern of Mother failing to follow through with services and requirements and attempting to cover this failure by blaming either the providers of services or those asking her to complete tasks for her lack of action. She refused to continue to attend Alcoholics Anonymous and Narcotics Anonymous meetings because she asserted that there might be individuals at those meetings who would harm her or her children. She did not complete counseling as ordered because she [did not] like the counselor she was seeing. She [did not] complete her mental health counseling with Christopher Anderson at the Bradford Regional Medical Center because [Mother did not] feel it was helpful. She [did not] take her medication for her seizure disorder and mental health care because she [did not] like the side effects and asserted she [could not] afford them even though caseworker Braeger indicated that [Mother] could obtain prescription assistance if she contacted the American Red Cross and/or Destinations Bradford.
[CYS] also demonstrated that there was an unproductive pattern regarding visits. Mother attended some but missed a substantial amount of the scheduled visits. When she was asked to help with the scheduling of the visits she refused to even provide her work schedule. During the visits[,] Mother's care of [C]hildren was questionable. She did not understand how to interact and take care of them. She zoned out and looked at her phone. When caseworkers and other service providers attempted to teach Mother to be more attentive and recognize [C]hildren's cues, Mother was often very defiant and, again, "she would argue until she was blue in the face."
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Therefore, since [CYS] presented sufficient evidence to demonstrate that nonsuit was not appropriate, the court's failure to rule on that Motion at the time it was made was harmless error and Mother, therefore, is not entitled to relief on appeal.(Rule 1925(a) Opinion, filed July 1, 2015, at 2-4). We accept the court's conclusions. CYS presented sufficient evidence to support the involuntary termination of Mother's parental rights under Section 2511(a)(1) and (a)(5). See 23 Pa.C.S.A. § 2511(a)(1), (5). Thus, Mother suffered no prejudice from the court's failure to rule on her motion, as competent evidence supported CYS' claims for relief. Likewise, Mother suffered no improper burden shifting at the termination proceedings. See In re Z.P., supra at 1115-16; In re Estate of Boardman , supra. Accordingly, Mother's first and second issues merit no relief.
With regard to Mother's third issue, claiming sufficiency of the evidence, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable John H. Pavlock, we conclude issue three merits no relief. The court's opinions comprehensively discuss and properly dispose of the question presented. ( See Trial Court Opinion for X.J.R., filed March 31, 2015 at 8-11, 17-19; Trial Court Opinion for P.A.R., filed March 31, 2015, at 8-11, 17-19) (finding: Mother made initial efforts to cooperate with caseworker and comply with reunification plan by attending visits with Children, attending medical appointments, and participating in several programs to address Mother's mental health and drug and alcohol problems; nevertheless, Mother remains detached from Children during visits, lacks adequate understanding of parenting responsibilities, has failed to address personal and parenting concerns despite being given multiple opportunities, has pattern of failing to follow through with services and requirements, blames service providers for failing to help her complete tasks, has failed to attend Alcoholics Anonymous, Narcotics Anonymous, and counseling, and has failed to take medication for seizure disorder and mental health issues; Mother has failed to maintain consistent contact with caseworker, and has missed substantial amount of scheduled visits with Children; Mother has repeatedly notified CYS last minute that she would be unable to attend visits because of work, but refuses to provide CYS with her work schedule to facilitate scheduling visits with Children; Children lack strong bond with or recognition of Mother due to her lack of contact with them; Mother's interactions with Children are "forced" and "strained" because of her lack of emotional attachment to Children; Mother has extreme difficulty meeting Children's basic needs during visits, such as feeding them; Mother's current apartment is not furnished in condition suitable for Children; CYS demonstrated, through clear and convincing evidence, competent grounds to terminate Mother's parental rights to Children under Sections 2511(a)(1) and (a)(5)). The record supports the court's decision; therefore, we see no reason to disturb it. As for Mother's sufficiency of the evidence issue, we affirm on the basis of the court's opinions. Accordingly, we affirm the involuntary termination of Mother's parental rights to Children.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/24/2015
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