Opinion
J-S79032-16 No. 1425 EDA 2016 No. 1548 EDA 2016
12-05-2016
IN RE: J.L.M.-C., a Minor APPEAL OF: J.M.M. A/K/A J.M.C., Mother IN THE INTEREST OF: A.R.M., a Minor APPEAL OF: J.M.M. A/K/A J.M.C., Mother
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree entered May 4, 2016 in the Court of Common Pleas of Bucks County
Orphans' Court at No(s): 2015-9020 Appeal from the Decree entered May 4, 2016 in the Court of Common Pleas of Bucks County
Orphans' Court at No(s): 2015-9021 BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
J.M.M. a/k/a J.M.C. ("Mother") appeals from the Decrees granting the Petitions filed by the Bucks County Children and Youth Social Services Agency ("BCCYSS" or the "Agency") for the involuntary termination of her parental rights to her two minor daughters: J.L.M.-C., born in August 2012, and A.R.M., born in September 2010 (collectively "the Children"), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). We affirm.
In separate Decrees entered on May 4, 2016, the trial court also involuntarily terminated the parental rights of the Children's biological father, S.C., Sr. (hereinafter "Father"). Father did not file an appeal, nor is he a party to the instant appeal.
The Children came into the care of BCCYSS in July 2013, when A.R.M. was approximately three years old, and J.L.M.-C. was approximately one year old. On August 12, 2013, the trial court adjudicated the Children dependent, and granted temporary legal and physical custody to BCCYSS. On February 27, 2015, BCCYSS filed Petitions to terminate Mother's parental rights. The trial court held evidentiary hearings on the Petitions on July 8-9, 2015, September 17, 2015, October 7, 2015, and April 15, 2016.
The trial court set forth in its Opinion the relevant underlying facts and evidence adduced at the evidentiary hearings. See Trial Court Opinion, 6/13/16, at 6-8. We adopt the trial court's recitation as though fully set forth herein. See id.
In the Decrees entered on May 4, 2016, the trial court involuntarily terminated Mother's parental rights to the Children pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). Mother timely filed Notices of Appeal, along with Concise Statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Thereafter, this Court, sua sponte, consolidated the appeals.
On appeal, Mother presents the following issues for our review:
1. Where Mother denied sexually abusing a minor and there was no adjudication of her as a sexual offender of a minor, did the trial court err as matter of law and abuse its discretion when it made inferences or deductions that Mother is an untreated sexual offender who can[]not adequately parent [the C]hildren based solely on Mother's failure to timely appeal the "indicated" finding of child sexual abuse or complete sexual offender [treatment]?Mother's Brief at 5.
2. Did the trial court err as a matter of law and abuse [its] discretion in finding that termination of Mother's parental rights is warranted pursuant to [section] 2511(a)(2)[,] (5) and (8) due to the [court's] underlying inference that Mother's indicated [sexual abuse] finding [was] untimely appealed[,] and [she] fail[ed] to complete sexual offender treatment[, and in] determin[ing that] she was unable to adequately parent [the C]hildren?
3. Did the trial court's improper inference and deduction in finding [that] Mother could not adequately parent [the C]hildren[,] due to her failure to undo her indicated finding or complete sexual offender [treatment,] taint the Section 2511(b) analysis?
Mother did not raise her first issue in her Rule 1925(b) Concise Statement; therefore, she failed to preserve this issue for our review. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that "[a]ny issues not raised in a 1925(b) statement will be deemed waived."); see also Pa.R.A.P. 1925(b)(4)(vii) (providing that "[i]ssues not included in the Statement ... are waived."). Though Mother stated her second and third issues somewhat differently in her Concise Statement, we deem them nevertheless preserved for our review.
In reviewing an appeal from a decree terminating parental rights, we adhere to the following standard:
[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., [] 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., 36 A.3d [567, 572 (Pa. 2011) (plurality opinion)]. 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., [] 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely , [] 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.In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
As [the Supreme Court] 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 , [] 650 A.2d 1064, 1066 (Pa. 1994).
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). "[T]he 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. (citation and quotation marks omitted).
This Court may affirm a trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a), along with a consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In the instant case, we will focus on section 2511(a)(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:
* * *
(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.A. § 2511(a)(2), (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.
To satisfy the requirements of subsection 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental rights under subsection 2511(a)(2) 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); see also In re Adoption of S.P., 47 A.3d at 827 (stating that "[a] decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based upon parental incapacity. The legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.").
Mother argues that the trial court abused its discretion in determining that the requirements of subsection 2511(a)(2) were met. See Mother's Brief at 13, 15. Mother complains that the trial court's "inference" that she was a sexual offender who had not completed sexual offender treatment, and could not adequately parent the Children, was the only "pertinent evidence" for the determination that BCCYSS had satisfied its burden with regard to subsection 2511(a)(2). Id. at 15. Relying on In re Matsock , 611 A.2d 737 (Pa. Super. 1992), Mother contends that we are not bound by the trial court's inference that she cannot adequately parent the Children based on the "indicated" sexual abuse finding against her, and her non-completion of sex offender treatment. See Mother's Brief at 13-14. Mother urges us to reverse the termination of her parental rights "due to the lack of an adjudication of Mother as a sexual offender[; the] lack of expert witness testimony that Mother was in need of sexual offender treatment or unable to parent[;] and [the] failure of BCCYS[S] to develop a trial record of competent evidence." Id. at 13-14.
Here, the trial court set forth in its Opinion its reasons for determining that the Agency presented clear and convincing evidence that termination of Mother's parental rights was proper under subsection 2511(a)(2). See Trial Court Opinion, 6/13/16, at 9-12; see also id. at 6-8 (setting forth the evidence adduced at the evidentiary hearings). The record supports the trial court's factual findings, and the court's conclusions are not the result of an error of law or an abuse of discretion. See In re Adoption of S.P., 47 A.3d at 826-27. Accordingly, we adopt the trial court's recitation as though fully stated herein, see Trial Court Opinion, 6/13/16, at 6-12, and affirm on this basis as to Mother's second issue, with the following addendum.
In Matsock , the primary case upon which Mother relies, the trial court terminated the parental rights of a father to his minor daughter, who had lacerations on her vulva, as well as to the child's siblings, pursuant to subsection 2511(a)(5). Matsock , 611 A.2d at 739-40. The father denied sexually abusing his daughter, and continued his denial while he was attending court-ordered sexual abuse therapy programs. Id. at 739. This Court pointed out that there had never been any criminal charges brought against father for sexually abusing the child, nor was he ever adjudicated a sexual offender. Id. at 741; see also id. (stating that "[a]s a result of his steadfast denial of the alleged abuse, [father] was terminated from two different court-ordered sexual abuse therapy programs. ... Thus, since he did not complete the therapy programs, [father] is considered an 'untreated sexual offender.'"). The panel reversed, concluding that termination of father's parental rights under subsection 2511(a)(5) was not supported by clear and convincing evidence, stating as follows:
[W]hile we are bound by the trial court's finding, supported by competent evidence in the record, that [father] did not "successfully complete" the sexual abuse therapy programs, we are not bound by the court's inference or deduction that [the father] is an untreated sexual offender who poses a danger to his children. We also conclude [that] the trial court misapplied the law in failing to consider whether the needs and welfare of [father's children] would be advanced by the termination of their father's parental rights.Id. (internal citations omitted).
We find Mother's reliance on Matsock to be unavailing. Here, unlike the circumstances in Matsock , the record belies Mother's contention that the indicated sexual abuse finding against her, and her failure to avail herself of sexual offender treatment, was the "only pertinent evidence" upon which the trial court relied in terminating her parental rights. Rather, the trial court also considered the evidence of Mother's repeated absences from the home for prolonged periods of time; "mental health concerns" regarding Mother; Mother's dependence on Father and maternal grandmother, who previously was a trigger for Mother's drug abuse; domestic violence between Mother and Father; and Mother's lack of stability and independence with regard to housing, employment, finances, and childcare. See Trial Court Opinion, 6/13/16, at 6, 10-12. Accordingly, Mother's second issue fails.
Moreover, unlike the father in Matsock , criminal charges were brought against Mother, and she failed to pursue sexual offender treatment. Further, contrary to the trial court in Matsock , the trial court here considered "whether the needs and welfare of [the Children] would be advanced by the termination of [Mother's] parental rights[,]" Matsock , supra , which we discuss below. --------
Next, we review the termination of Mother's parental rights under section 2511(b), which Mother challenges in her third issue. Mother argues that the trial court's "inference that [she] was a sexual offender who did not complete sexual offender treatment" tainted its determination that the requirements of section 2511(b) were satisfied by clear and convincing evidence. Mother's Brief at 18.
We have explained that the focus in terminating parental rights under section 2511(a) is on the parent, but it is on the child pursuant to section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d at 791.In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
We have stated that, in conducting a bonding analysis, the court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010); see also In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008) (stating that although it is often wise to have a bonding evaluation and make it part of the certified record, "[t]here are some instances ... where direct observation of the interaction between the parent and the child is not necessary and may even be detrimental to the child."). There is no bond worth preserving between a child and a natural parent where the child has been in foster care for most of the child's life, and the resulting bond with the natural parent is attenuated. In re K.Z.S., 946 A.2d at 764. It is appropriate to consider a child's bond with his or her foster parent(s). See In re: T.S.M., 71 A.3d at 268.
"[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." In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004). "[W]e will not toll the well-being and permanency of [a child] indefinitely." In re Adoption of C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that a child's life "simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting.")).
The trial court set forth in its Opinion its reasons for determining that termination of Mother's parental rights was warranted under section 2511(b). See Trial Court Opinion, 6/13/16, at 12-14. The record supports the trial court's factual findings, and its conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of S.P., 47 A.3d at 826-27. We adopt the trial court's recitation as though fully stated herein, and affirm on this basis as to Mother's third issue. See Trial Court Opinion, 6/13/16, at 12-14; see also In re K.Z.S., 946 A.2d at 763-64 (affirming the involuntary termination of the mother's parental rights, despite the existence of some bond, where placement with the mother would have been contrary to the child's best interests, and any bond with the mother would have been fairly attenuated when the child was separated from her, almost constantly, for four years).
Based upon the foregoing, we affirm the Decrees terminating Mother's parental rights under section 2511(a)(2) and (b).
Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/5/2016
Image materials not available for display.