Opinion
J-S31001-16 J-S31002-16 No. 1834 MDA 2015 No. 1835 MDA 2015 No. 1836 MDA 2015 No. 1837 MDA 2015
05-31-2016
IN RE: ADOPTION OF: L.B.M., A MINOR, Appellee APPEAL OF: J.P., MOTHER IN RE: ADOPTION OF: A.D.M., A MINOR, Appellee APPEAL OF: J.P., MOTHER IN THE INTEREST OF: L.B.M., A MINOR, Appellee APPEAL OF: J.P. IN THE INTEREST OF: A.D.M., A MINOR, Appellee APPEAL OF: J.P.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 25, 2015
In the Court of Common Pleas of Franklin County
Orphans' Court at No(s): 42-Adopt-2014 Appeal from the Order Entered September 25, 2015
In the Court of Common Pleas of Franklin County
Orphans' Court at No(s): 41-Adopt-2014 Appeal from the Order Entered September 25, 2015
In the Court of Common Pleas of Franklin County
Juvenile Division at No(s): CP-28-DP-0000050-2013 Appeal from the Order Entered September 25, 2015
In the Court of Common Pleas of Franklin County
Juvenile Division at No(s): CP-28-DP-0000051-2013 BEFORE: SHOGAN, OTT, and STRASSBURGER, JJ. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
J.P. ("Mother") appeals from the orders involuntarily terminating her parental rights to her sons, L.B.M. (born in May of 2011) and A.D.M. (born in March of 2007) (collectively "the Boys"), changing their permanency goals to adoption, and denying Mother's motion to modify placement. We affirm.
This Court sua sponte consolidated the above-captioned appeals. Order, 11/20/15.
Mother voluntarily referred the Boys to Franklin County Children and Youth Service ("the Agency") on or about July 3, 2013, because she was without proper housing and resources to care for them. Following a shelter care hearing on July 5, 2013, the Boys remained in the Agency's care. Following a hearing on July 11, 2013, the Boys were adjudicated dependent pursuant to 42 Pa.C.S. § 6302(1) and placed in foster care. The trial court appointed Attorney Kristen Hamilton as the Boys' guardian ad litem ("the GAL"). Order of Court, 7/8/13.
The Boys' natural father, J.D.M. ("Father"), was incarcerated at the time of their placement. Father's rights were involuntarily terminated by order of court on November 25, 2014. This Court affirmed that decision. In re L.B.M., 94 MDA 2015, 122 A.3d 1132 (filed June 15, 2015) (unpublished memorandum).
During the Boys' placement, the trial court conducted six permanency review hearings: October 8, 2013; January 2, 2014; April 14, 2014; October 3, 2014; January 26, 2015; and May 19, 2015. At each hearing, Mother was ordered to obtain suitable housing and financial stability, to maintain consistent visitation with the Boys, to comply with the terms of her criminal sentence and probation, and to participate in a psychological evaluation and follow any recommendations. As of April of 2014, Mother was not compliant with her permanency plan. Permanency Review Order, 4/21/14, at 1. Moreover, since the Boys' placement, Mother had been incarcerated four times: 7/5/13 to 10/2/13; 10/24/13 to 11/6/13; 12/12/13 to 4/24/14; and 5/5/14 to 6/20/14. Permanency Review Order, 11/25/14, at 1; N.T., 10/3/14, at 12.
The Agency filed a petition for termination of Mother's parental rights on August 6, 2014. Following a hearing on October 3 and 24, 2014, the trial court declined to terminate Mother's parental rights due to the Agency's failure to establish by clear and convincing evidence grounds under section 2511(a)(2), (5), or (8), and due to Mother's demonstrated progress, her stable housing and employment, and the emotional bond between Mother and the Boys, especially A.D.M. Decree, 11/25/14, at 13-21.
Mother filed a motion for modification of placement on July 2, 2015, requesting that the Boys be placed with their maternal grandparents: grandmother B.O. and step-grandfather R.O. Motion for Modification of Placement, 7/2/15, at ¶¶ 4-10. The GAL and the Agency filed answers on July 15, 2015, and July 20, 2015, respectively, opposing modification of the Boys' placement in foster care.
The GAL filed a petition for termination of mother's parental rights on August 4, 2015 ("the Petition"), and a motion to incorporate the previous proceedings on August 28, 2015. Mother filed a motion to appoint counsel for the Boys on August 8, 2015, to which the Agency and the GAL filed separate answers on August 31, 2015. The trial court granted the GAL's motion to incorporate the prior proceedings and denied Mother's request for counsel. Orders of Court, 9/19/15.
The trial court held a hearing on the GAL's petition for termination and simultaneously received evidence on Mother's motion for modification of placement on September 15 and 18, 2015. In separate orders, the trial court denied Mother's motion for modification, terminated Mother's parental rights to the Boys pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (8), and changed their permanency goals to adoption. Orders of Court, 9/22/15, and 9/25/15. Mother filed a timely notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 20, 2015. Thereafter, the trial court filed its Pa.R.A.P. 1925(a) opinion on December 7, 2015.
Mother presents the following statement of issues for our review:
1. The trial court erred in determining that the Guardian Ad Litem established the statutory grounds by clear and convincing evidence for terminating [Mother's] parental rights pursuant to 23 Pa.C.S. § 2511(a)(2), (a)(5) and (a)(8) when Mother voluntarily sought the initial placement of the [Boys] due to homelessness, remedied the conditions which led to the voluntary placement of the [Boys] by having stable housing for over a year, and exhibited a strong bond with the [Boys].Mother's Brief at 4 (reformatted).
2. The trial court erred in not appointing legal counsel for the [Boys] in a contested involuntary termination of parental rights hearing as required by a clear mandate of 23 Pa.C.S. § 2313(a) and particularly in light of the Guardian Ad Litem and [A.D.M.'s] position on termination being oppositional; thus making the Guardian Ad Litem unable to effectively and adequately effectuate the duty of loyalty to [A.D.M.] required as legal counsel.
3. The trial court erred in changing the goal from reunification to adoption where a bond exists between Mother and the [Boys] and where Mother made substantial progress toward the circumstances which necessitated the original placement when Mother had safe, stable housing and employment for over a year, maintained consistent visitation with the [Boys], and was compliant with her drug and alcohol treatment.
4. The trial court erred in denying Mother's motion for the [Boys] to be placed with their maternal grandparents when the [Boys] had a relationship with their grandparents their entire lives and the grandparents were approved as a kinship placement by Family Care Services following a home study.
We review these appeals with the following standards in mind:
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotation marks omitted).
The termination of parental rights is governed by section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis:
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 his or 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. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the trial court terminated Mother's parental rights pursuant to section 2511(a)(2), (5), (8), and (b). We need only agree with the trial court as to any one subsection of section 2511(a) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Additionally, pursuant to section 2511(b), the trial court must determine whether termination of parental rights would best serve the developmental, physical and emotional needs of the child. In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." Id. at 1287 (citation omitted). We have instructed that the trial court "must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond." Id.
We analyze the trial court's decision to terminate under section 2511(a)(2) and (b), which provide as follows:
(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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(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. § 2511(a)(2) and (b).
Disposition of a dependent child is governed by section 6351(e), (f), (f.1), (f.2), and (g) of the Juvenile Act, 42 Pa.C.S. §§ 6301-6375, which provides the trial court with the criteria for its permanency plan for the subject child. "Pursuant to those subsections of the Juvenile Act, 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." M.T., 101 A.3d at 1173.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.—42 Pa.C.S. § 6351(e). Subsections 6351(f), (f.1), (f.2), and (g) prescribe the pertinent inquiry for the reviewing court:
(1) [t]he court shall conduct a permanency hearing for the purpose of determining or reviewing the permanency plan of the child, the date by which the goal of permanency for the child might be achieved and whether placement continues to be best suited to the safety, protection and physical, mental and moral welfare of the 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.
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(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 an 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 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.
(5) If and when the child will be placed in another living arrangement intended to be permanent in nature which is approved by the court in cases where the county agency has documented a compelling reason that it would not be best suited to the safety, protection and physical, mental and moral welfare of the child to be returned to the child's parent, guardian or custodian, to be placed for adoption, to be placed with a legal custodian or to be placed with a fit and willing relative.
(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.42 Pa.C.S. § 6351(e), (f), (f.1), (f.2), and (g).
(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.
In a change of goal proceeding, the best interests of the child, and not the interests of the parent, must guide the trial court, and the parent's rights are secondary. In re A.K., 936 A.2d 528, 532-533 (Pa.Super.2007). The burden is on the [petitioner] to prove the change in goal would be in the child's best interests. In the Interest of M.B., 449 Pa.Super. 507, 674 A.2d 702, 704 (1996).In re M.T., 101 A.3d 1163, 1173 (Pa. Super. 2014). Moreover, this Court has stated:
The focus of all dependency proceedings, including change of goal proceedings, must be on the safety, permanency, and well-being of the child. The best interests of the child take precedence over all other considerations, including the conduct and the rights of the parent.... While parental progress toward completion of a permanency plan is an important factor, it is not to be elevated to determinative status, to the exclusion of all other factors. In re A.K., 936 A.2d 528, 534 (Pa.Super.2007).M.T., 101 A.3d at 1175; see also In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006) (granting goal change to adoption despite the fact that the mother had made substantial progress toward completing her permanency plan because mother's parenting skills and judgment regarding her children's emotional well-being remained problematic).
Regarding the placement of a child, a panel of this Court stated:
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).In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006). The primary purpose of the disposition of a dependent child is to examine what is in the best interest of the child. 42 Pa.C.S. § 6351(a); see In re Tameka M., 580 A.2d 750, 753 (Pa. 1990) ("In ordering a disposition under Section 6351 of the Juvenile Act, the court acts not in the role of adjudicator reviewing the action of an administrative agency, . . . rather the court acts pursuant to a separate discretionary role with the purpose of meeting the child's best interests.") (quoting In re Lowry , 484 A.2d 383 (Pa. 1984)).
We have reviewed the briefs of the parties, the certified record, the relevant law, and the opinion filed by the Honorable Carol L. Van Horn on December 7, 2015. In doing so, we conclude that the trial court thoroughly considered the facts as provided at the termination hearing. Additionally, the trial court thoroughly analyzed the statutory factors for termination of parental rights pursuant to Pa.C.S. § 2511(a) and (b) and for a goal change pursuant to 42 Pa.C.S. § 6351, as well as the procedures for modification of placement pursuant to Pa.R.J.C.P. 1606 and the appointment of counsel pursuant to 23 Pa.C.S. § 2313(a). Trial Court Opinion, 12/7/15, at 5-24, 29-44. Moreover, the trial court's findings are supported by the record, and we discern no abuse of its discretion in terminating Mother's parental rights, changing the Boys' permanency goals to adoption, denying Mother's motion for modification of placement and her request for appointment of counsel. Therefore, we affirm the trial court's orders on the basis of its December 7, 2015 opinion.
The parties are directed to attach a redacted copy of that opinion in the event of further proceedings in this matter. --------
Orders affirmed.
Judge Ott joins the Memorandum.
Judge Strassburger files a Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/31/2016
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