Opinion
J-S52011-17 No. 647 MDA 2017 No. 648 MDA 2017 No. 649 MDA 2017 No. 678 MDA 2017 No. 679 MDA 2017 No. 680 MDA 2017
10-18-2017
IN THE INTEREST OF: C.D.M., JR., A MINOR APPEAL OF: S.M.W. IN THE INTEREST OF: C.D.M.M., A MINOR APPEAL OF: S.M.W. IN RE: ADOPTION OF: C.D.M., JR., A MINOR APPEAL OF: S.M.W., MOTHER IN RE: ADOPTION OF: C.D.M.M., A MINOR APPEAL OF: S.M.W., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 22, 2017
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000022-2010 Appeal from the Order Entered March 22, 2017
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000020-2010 Appeal from the Order Entered March 22, 2017
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000021-2010 Appeal from the Decree March 21, 2017
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2016-0163a Appeal from the Decree March 21, 2017
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2016-0164 Appeal from the Decree March 21, 2017
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2016-0165a BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
S.M.W. ("Mother") appeals from the Decrees granting the Petitions, filed by the York County Office of Children, Youth and Families ("CYF" or the "Agency"), to involuntarily terminate her parental rights to her son, C.D.M., Jr. ("Oldest Child") (born in July 2004); her daughter, C.D.M.M. ("Middle Child") (born in September 2005); and her son, C.D.M.M.2 ("Youngest Child") (born in December 2007) (collectively, "the Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Mother also appeals the related Orders that changed the Children's permanency goals from reunification to adoption, pursuant to 42 Pa.C.S.A. § 6351. We affirm.
The Children have another younger male half-sibling, Car.M., who resides with his father. See N.T., 2/24/17, at 73, 91, 166, 224. Neither Car.M. nor his father is a subject of the instant appeal.
In separate Decrees entered on March 21, 2017, the trial court terminated the parental rights of the Children's father, C.D.M., Sr. ("Father"), and any unknown father to the Children. Neither Father nor any unknown father has filed an appeal, nor is Father or any unknown father a party to the instant appeal.
The trial court set forth the factual background of this appeal in its Adjudication and Order entered on March 21, 2017 (hereinafter "Trial Court Opinion"). See Trial Court Opinion, 3/21/17, at 1-8. We incorporate the trial court's recitation as though fully set forth herein. See id.
At the hearing on CYF's termination/goal change Petitions, held on February 24, 2017, each of the Children testified. See N.T., 2/24/17, at 18-70. Additionally, CYF presented four witnesses, including Chelsea Grove (hereinafter "Caseworker"), a placement caseworker at CYF, who had been the assigned Caseworker for the Children since June 2016. Id. at 117-18. Mother testified on her own behalf. Id. at 208.
On March 21, 2017, the trial court entered the Decrees terminating Mother's parental rights to the Children pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). On the following day, the court entered the Orders changing the Children's permanency goals to adoption. Mother filed separate, timely 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). In May 2017, this Court, sua sponte, consolidated the appeals.
Mother now presents the following issues for our review:
I. Whether the trial court abused its discretion and/or erred as a matter of law in changing the [] Children's permanency goals to adoption[,] when [Mother] asserts such was not in the best interest[s] of the Children?Mother's Brief at 5 (issues renumbered for ease of disposition).
II. Whether the trial court abused its discretion and/or erred as a matter of law in changing the permanency goal to adoption[,] and terminating the parental rights of [Mother,] when more time may permit [Mother] to remedy the conditions that caused removal and permit the Children and [Mother] to live once again as an intact family?
III. Whether the trial court abused its discretion and/or erred as a matter of law in terminating the parental rights of [Mother] when such was not in the best interests of the Children[,] where bonds do exist between [Mother] and the Children, the Children and one another, and there is no plan to place the three Children together?
IV. Whether the trial court abused its discretion and/or erred as a matter of law in terminating the parental rights of [Mother,] as [] Caseworker testified beyond her knowledge and/or expertise?
Mother stated her issues somewhat differently in her Concise Statements. We, nevertheless, find them sufficiently preserved for our review.
In her first issue, Mother argues that the trial court abused its discretion or erred as a matter of law in changing the Children's permanency goals to adoption. See id. at 10-12. Mother complains that the trial court failed to inquire "what, if any, efforts were made to locate a home for all three [] of the Children." Id. at 11. She further contends that
the tentative "plan" for the Children is ultimately not in their best interests and welfare due to: their age; their bonds with [Mother]; their bonds with one another; and the fact that the Children have ultimately been separated not only from their only involved biological parent, but from one another as well. Additionally, within the last six [] months, Mother had been in a position to have the Children in her unsupervised care[,] and [she] was working toward reunification.Id. at 12.
[T]he standard of review in dependency cases requires an appellate court to accept findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. We review for abuse of discretion[.]In Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citations and quotation marks omitted).
Regarding the disposition of a dependent child, section 6351(e), (f), (f.1), and (g) of the Juvenile Act provide the trial court with the criteria for its permanency plan for the subject child. See 42 Pa.C.S.A. § 6351. Pursuant to those subsections, the trial court is to determine the disposition that is best suited to the safety, protection and physical, mental and moral welfare of the child. See id. § 6351(g).
When considering a petition for goal change for a dependent child, the trial court must consider:
the continuing necessity for and appropriateness of the placement; the extent of compliance with the service plan developed for the child; the extent of progress made towards alleviating the circumstances which necessitated the original placement; the appropriateness and feasibility of the current placement goal for the child; and, a likely date by which the goal for the child might be achieved.In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citation omitted).
Additionally, section 6351(f.1) requires the trial court to make a determination regarding the child's placement goal:
(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:
42 Pa.C.S.A. § 6351(f.1)(2).
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(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.
On the issue of a placement goal change, this Court has stated as follows:
When a child is adjudicated dependent, the child's proper placement turns on what is in the child's best interest, not on what the parent wants or which goals the parent has achieved. See In re Sweeney , 393 Pa. Super. 437, 574 A.2d 690, 691 (1990) (noting that "[o]nce a child is adjudicated dependent ... the issues of custody and continuation of foster care are determined by the child's best interests"). Moreover, although preserving the unity of the family is a purpose of [the Juvenile Act], another purpose is to "provide for the care, protection, safety, and wholesome mental and physical development of children coming within the provisions of this chapter." 42 Pa.C.S. § 6301(b)(1.1). Indeed, "[t]he relationship of parent and child is a status and not a property right, and one in which the state has an interest to protect the best interest of the child." In re E.F.V., 315 Pa. Super. 246, 461 A.2d 1263, 1267 (1983) (citation omitted).In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
In its Opinion, the trial court thoroughly addressed Mother's issue, discussed the section 6351 criteria and the applicable law, and determined that changing the Children's placement goal to adoption was appropriate and in the Children's best interests. See Trial Court Opinion, 3/21/17, at 9-15, 26; see also id. at 24-25 (wherein the trial court addressed the matter of Middle Child's placement in a pre-adoptive home different from the pre-adoptive placement home of Oldest Child and Youngest Child, and the efforts needed to continue sibling contact). The trial court's findings are supported by the record, and we agree with its determination, discerning no abuse of discretion. See In Interest of L.Z., 111 A.3d at 1174. Accordingly, we adopt the trial court's recitation as though fully set forth herein, and affirm on this basis concerning Mother's first issue. See Trial Court Opinion, 3/21/17, at 9-15, 26.
In her second issue, Mother argues that the trial court abused its discretion in determining that termination of her parental rights to the Children was warranted, when more time might permit Mother to remedy the conditions that caused the Children's removal from her care, and permit the reunification of Mother and the Children. See Mother's Brief at 22-23.
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.
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. [The Court] 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).In re Adoption of S.P., 47 A.3d 817, 826-27 (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). "[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 sections 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:
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(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.
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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.
Concerning incapacity sufficient for termination under subsection 2511(a)(2), the Pennsylvania Supreme Court has stated as follows:
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.In re Adoption of S.P., 47 A.3d at 827 (citation omitted).
Moreover,
[t]he biological relationship of parent and child does not vest in the parents a property right to the custody of the child. Instead, a parent-child relationship is a status, and one in which the state has an interest to protect the best interest of the child. Maintaining a parent-child relationship requires a continued
interest in the child and a genuine effort to maintain communication and association with the child.In re Adoption of M.R.D., 128 A.3d 1249, 1261-62 (Pa. Super. 2015) (en banc) (citations, quotation marks and ellipses omitted); see also In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002) (stating that a parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous).
A parent is required to exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use 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. This [C]ourt has repeatedly recognized that 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 immediate physical and emotional needs.
In its Opinion, the trial court addressed Mother's second issue and determined that CYF had established, by clear and convincing evidence, that termination of Mother's parental rights to the Children was appropriate under subsection 2511(a)(2). See Trial Court Opinion, 3/21/17, at 20-21, 21-22. The trial court's findings are supported by the record, and we agree with its determination that (1) Mother lacks parental capacity; and (2) the evidence showed that she will be unable to remedy that situation within a reasonable period of time, if ever. Accordingly, we adopt the trial court's recitation as though fully set forth herein, see id., and affirm on this basis as to Mother's second issue, with the following addendum.
Concerning Mother's claim that she could remedy the conditions that led to the Children's placement if afforded more time, this Court has stated that "we will not toll the well-being and permanency of [a child] indefinitely." In re Adoption of C.L.G., 956 A.2d 999, 1007 (Pa. Super. 2008) (en banc) (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.")). Moreover, "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) (internal citations omitted).
In her third issue, Mother challenges the trial court's determination that CYF had established, by clear and convincing evidence, that termination of her parental rights was in the Children's best interests under section 2511(b), particularly where (1) strong bonds exist between her and the Children, and amongst the Children; and (2) there is no plan to place the three Children together. See Mother's Brief at 13-16.
This Court has stated 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 at 1008. In reviewing the evidence in support of termination under section 2511(b), our Supreme Court has stated as follows:
[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. § 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).
Here, the trial court thoroughly addressed its consideration of section 2511(b) in its Opinion. See Trial Court Opinion, 3/21/17, at 22-25. As the court's analysis is sound and supported by the record, we adopt it herein by reference. See id. We additionally note the following.
Our Supreme Court has stated that the mere existence of a bond or attachment of a child to a parent will not necessarily result in the denial of a termination petition, and that "[e]ven the most abused of children will often harbor some positive emotion towards the abusive parent." In re: T.S.M., 71 A.3d at 267 (citation omitted). Additionally, "[t]he continued attachment to the natural parents, despite serious parental rejection through abuse and neglect, and failure to correct parenting and behavior disorders which are harming the children[,] cannot be misconstrued as bonding." Id. (citation omitted).
Moreover, the trial court appropriately considered the fact that Oldest Child and Youngest Child would be living together in the same pre-adoptive foster home after the hearing, with R.C. and K.C. as their foster parents. The trial court also considered that Middle Child was in a separate foster home, with K.S. and her husband, S.S., as the foster parents. Caseworker testified that she had spoken with both foster families on numerous occasions concerning the Children's separation, and the foster parents had assured Caseworker that they would ensure that the Children have visitation and the ability to call each other. See N.T., 2/24/17, at 167. Similarly, the Children's Guardian Ad Litem ("the GAL") questioned Caseworker about the arrangements for the Children to visit with each other and Car.M. Id. at 169-71. The GAL opined that a meeting between both sets of pre-adoptive foster parents would be appropriate to address the matter of continuing sibling contact. Id. at 206. At the close of the hearing, the trial court directed CYF and the GAL to meet with the foster parents and the father of Car.M., in order to devise a plan to maintain sibling contact. Id. at 246. The court ordered that the Children shall spend a minimum of two hours per week together, and that CYF must attempt to involve Car.M. as well. Id. at 246-47. Further, the trial court ordered that the Children shall conduct at least one conference phone call per week, in addition to the two-hour visit. Id. at 247. Accordingly, contrary to Mother's claim, the trial court, in fact, appropriately considered the bond between the Children and the importance of maintaining that bond.
In her related fourth issue, Mother asserts that the testimony of Caseworker was beyond her knowledge/expertise. See Mother's Brief at 16-22. According to Mother, "in considering and utilizing [] Caseworker's overall testimony, the trial court abused its discretion and/or erred as a matter of law in terminating [] Mother's[] parental rights." Id. at 21-22. We disagree.
When evaluating a parental bond, "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." In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal citations omitted). 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." In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008). Moreover, 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.
We discern no abuse of the trial court's discretion in finding that the requirements of section 2511(b) were met by clear and convincing evidence, and the record supports its findings and credibility determinations. See Trial Court Opinion, 3/21/17, at 22-25; 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 be contrary to the child's best interests, and any bond with the mother would be fairly attenuated when the child was separated from her, almost constantly, for four years). Accordingly, Mother's fourth issue does not entitle her to relief.
Based upon the foregoing, we affirm the Decrees terminating Mother's parental rights under section 2511(a)(1) and (b), and the Orders changing the Children's permanency goals to adoption.
The parties are hereby directed to attach to this Memorandum a copy of the Trial Court Opinion, in the event of further proceedings. --------
Decrees and Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/18/2017
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