Opinion
J-S64017-18 No. 2037 EDA 2018
12-11-2018
IN THE INTEREST OF: M.C.R. A/K/A M.R., A MINOR APPEAL OF: V.Y.R., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree June 13, 2018
In the Court of Common Pleas of Philadelphia County Family Court at No: CP-51-AP-0001060-2017 BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J. MEMORANDUM BY OLSON, J.:
V.Y.R. ("Mother") appeals from the decree and order entered June 13, 2018, granting the petition filed by the Philadelphia Department of Human Services ("DHS") seeking to involuntarily terminate her parental rights to her minor, female child, M.C.R. a/k/a M.R., born in April 2009 ("Child"), with O.R. a/k/a O.R., Sr. ("Father"), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b)., We affirm.
In a separate decree entered June 13, 2018, the trial court also involuntarily terminated the parental rights of Father to Child pursuant to section 2511(a)(2), (5), (8), and (b) of the Adoption Act. Father is not a party to this appeal, but has filed a separate appeal, assigned Docket No. 1896 EDA 2018, which we address in a separate Memorandum.
The trial court also entered an order on June 13, 2018 that changed Child's permanency goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S. § 6351. This order was filed at a different trial court docket number than the decree granting the petition for involuntary termination. Originally, Mother filed a single notice of appeal from both the decree and the order which contained both docket numbers. This Court issued a rule to show cause why the appeal should not be quashed as the notice of appeal did not comply with Pa.R.A.P. 341(a) which requires that separate notices of appeal must be filed at both docket numbers. Order, 9/4/18. See Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018). In Appellant's reply to the show cause order, counsel for Mother indicated that Mother was only appealing the petition which terminated her parental rights and that she was not appealing the goal change order. Appellant's Reply to Order to Show Cause, 9/5/18. As Mother is only appealing the decree entered at docket number CP-51-AP-001060-2017, we shall not quash this appeal and we amend the caption accordingly.
The trial court accurately and aptly set forth the factual background and procedural history of this case in its opinion filed on August 15, 2018, pursuant to Pa.R.A.P. 1925(a), which we adopt herein. Trial Court Opinion, 8/15/18, at 1-8. Importantly, on May 9, 2018, the trial court held an evidentiary hearing on the termination petitions with regard to Mother and Father. Attorney Stuart Maron represented Child as her Child Advocate/Guardian ad Litem ("GAL"), and Attorney Charles Andrew Rosenbaum as her special legal counsel. At the hearing, DHS presented a number of witnesses on its behalf. Both Mother and Father were present, were represented by counsel, and testified on their own behalf. Both counsel for Child were present, but Child was not present, and her counsel did not offer her preferred outcome of the proceedings. The court continued the hearing to June 13, 2018, so that it could hear testimony regarding Child's preferred outcome. At the conclusion of the hearing on June 13, 2018, the trial court entered its termination decrees and goal change order.
In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality), our Supreme Court held that 23 Pa.C.S. § 2313(a) requires that counsel be appointed to represent the legal interests of any child involved in a contested involuntary termination proceeding. The Court defined a child's legal interest as synonymous with his or her preferred outcome. Id. at 1092. Here, Child had both legal counsel and a GAL, and her preferred outcome, which, at times, is to return to the sexually abusive situation in her parents' home, is part of the record. See N.T., 5/9/18, at 29, 66; N.T., 6/13/18, at 7. Accordingly, the mandates of L.B.M. are satisfied as to the ascertainment of Child's preferred outcome.
On June 29, 2018, Mother, acting pro se, filed a notice of appeal, attaching a concise statement pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), stating that she was represented by counsel and uncertain of the errors to indicate. On July 3, 2018, the trial court vacated the appointment of Attorney James B. King, who had been Mother's trial counsel. That day, the trial court appointed Attorney Lisa Marie Visco as Mother's counsel. On July 11, 2018, the trial court directed Attorney Visco to file a supplemental concise statement within 21 days. On July 16, 2018, Attorney Visco filed a concise statement on behalf of Mother.
In her brief on appeal, Mother raises the following issues:
1. Whether the trial court erred and/or abused its discretion by terminating the parental rights of Mother, V.R.[,] pursuant to 23 Pa.C.S.A. [§] 2511(a)(1) where Mother presented evidence that she tried to perform her parental duties[?]
2. Whether the trial court erred and/or abused its discretion by terminating the parental rights of Mother, V.R.[,] pursuant to 23 Pa.C.S.A. [§] 2511(a)(2) where Mother presented evidence that she has remedied her situation by maintaining housing, taking parenting classes and mental health treatment counselling and classes at SAGE[,] and has the present capacity to care for [C]hild[?]
3. Whether the trial court erred and/or abused its discretion by terminating the parental rights of Mother, V.R.[,] pursuant to 23 Pa.C.S.A. [§] 2511(a)(5) where evidence was provided to establish that [C]hild was removed from the care of [] Mother and Mother is now capable of caring for [C]hild[?]Mother's Brief at 9.
4 Whether the trial court erred and/or abused its discretion by terminating the parental rights of Mother, V.R.[,] pursuant to 23 Pa.C.S.A. [§] 2511(a)(8) where evidence was presented to show that Mother is now capable of caring for [C]hild after she completed parenting classes, secured and maintained housing and receiving mental health treatment and participating in SAGE[?]
5. Whether the trial court erred and/or abused its discretion by terminating the parental rights of Mother, V.R.[,] pursuant to 23 Pa.C.S.A. [§] 2511(b) where evidence was presented that established [C]hild had a close bond with [] Mother and [Child] had lived with [] Mother for the most part of her life. Additionally, Mother maintained that bond by visiting with [C]hild when she was permitted to visit her[?]
We note that the trial court did not terminate Mother's parental rights under section 2511(a)(1), although DHS sought termination pursuant to that section. N.T., 6/13/18, at 8-9; Trial Court Opinion, 8/15/18, at 11.
In reviewing an appeal from the termination of 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. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision
may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal citations omitted).
As [the Pennsylvania Supreme Court] discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. [The Supreme 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. 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.
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).
Moreover, we have explained, "[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., quoting In re J .L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
This Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We will consider section 2511(a)(2) and (b).
In her brief, Mother argues that the trial court erred when it terminated her parental rights to Child under section 2511(a)(2) because the evidence presented at trial showed that she had remedied the conditions that caused Child to be placed in foster care. Mother's Brief at 11, 16-17. Citing In re Adoption of A.N.D., 520 A.2d 13 (Pa. Super. 1986), Mother asserts that past incapacity, alone, is not sufficient to support termination, and that she is now able to care for Child. Mother's Brief at 16-17. With regard to section 2511(b), Mother contends that evidence was presented that Child had lived with Mother for most of Child's life, and that Child had a strong bond with Mother. Id. at 13 and 19. Mother states that Child wished to visit Mother and live with her, and that Child's wishes were never taken into account. Id. at 19. Mother asserts that, when the trial court suspended her visits, Mother should have been given therapeutic visits and/or Parent Child Interactive therapy so that she could continue to have visitation with Child. Id. at 19-20.
Section 2511 provides, 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:
* * *
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.23 Pa.C.S. § 2511.
* * *
(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.
The Supreme Court set forth our inquiry under section 2511(a)(2) as follows.
As stated above, § 2511(a)(2) provides statutory grounds for termination of parental rights where it is demonstrated by clear and convincing evidence that "[t]he 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." . . .
This Court has addressed incapacity sufficient for termination under § 2511(a)(2):
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 J.J., 515 A.2d 883, 891 (Pa. 1986) quoting In re: William L ., 383 A.2d 1228, 1239 (Pa. 1978).In re Adoption of S.P., 47 A.3d at 827.
This Court has long recognized that a parent is required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). 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. Id. at 340.
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 999, 1008 (Pa. Super. 2008) (en banc). 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).
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).
A parent's abuse and neglect are likewise a relevant part of this analysis:
concluding a child has a beneficial bond with a parent simply because the child harbors affection for the parent is not only dangerous, it is logically unsound. If a child's feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent . . . Nor are we of the opinion that the biological connection between [the parent] and the children is sufficient in of itself, or when considered in connection with a child's feeling toward a parent, to establish a de facto beneficial bond exists. The psychological aspect of parenthood is more important in terms of the development of the child and [his or her] mental and emotional health than the coincidence of biological or natural parenthood.In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and quotations omitted). Thus, the court may emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary termination of parental rights, despite existence of some bond, where placement with the mother would be contrary to the child's best interests).
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." See In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013) quoting In re K .K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). The Supreme Court stated, "[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." See In re: T.S.M., 71 A.3d at 267 quoting In re Involuntary Termination of C .W.S.M., 839 A.2d 410, 418 (Pa. Super. 2003) (Tamilia, J. dissenting).
While Mother may claim to love Child, a parent's own feelings of love and affection for a child, alone, will not preclude termination of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We stated in In re Z.P., 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." Id. at 1125. Rather, "a parent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment." In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
Here, our review of the record demonstrates that there is sufficient, competent evidence in the record that supports the trial court's factual and legal determinations. Thus, we will not disturb the trial court's decision. In re Adoption of S.P., 47 A.3d at 826-27. Accordingly, we affirm the trial court's decree terminating Mother's parental rights to Child pursuant to section 2511(a)(2) and (b) of the Adoption Act, on the basis of the well-reasoned and thorough analysis set forth in Judge Deborah L. Canty's August 15, 2018 opinion. See Trial Court Opinion (Mother), 8/15/18, at 1-20. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Canty's August 15, 2018 opinion.
Decree and order affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/11/18
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