Opinion
J-A04035-18 No. 914 MDA 2017 No. 915 MDA 2017
03-13-2018
IN THE INTEREST OF: C.L., A MINOR APPEAL OF: R.L., MOTHER IN THE INTEREST OF: O.L.R., A MINOR APPEAL OF: R.L., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered May 9, 2017
In the Court of Common Pleas of York County Orphans' Court at No(s): 2017-21 Appeal from the Decree Entered May 9, 2017
In the Court of Common Pleas of York County Orphans' Court at No(s): 2017-18 BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J. MEMORANDUM BY RANSOM, J.:
Retired Senior Judge assigned to the Superior Court.
R.L. ("Mother"), appeals from the decrees dated and entered on May 9, 2017, granting the petitions filed by the York County Children and Youth Services ("CYS" or the "Agency"), to involuntarily terminate her parental rights to her children, O.L.R., born in September of 2012; and C.L., born in September of 2013 (collectively, the "Children"), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). We affirm.
O.L.R and C.L. have different fathers. See In Re Adoption of O.L.R., A Minor, Adjudication and Termination Order, 5/9/2017, at 2; In Re Adoption of C.L., A Minor, Adjudication and Termination Order, 5/9/2017, at 2. On May 9, 2017, the trial court entered a decree involuntarily terminating each father's parental rights to their child pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). See In Re Adoption of O.L.R., A Minor, Adjudication and Termination Order, 5/9/2017, at 50-51; In Re Adoption of C.L., A Minor, Adjudication and Termination Order, 5/9/2017, at 53-56. Neither father has filed an appeal from the voluntary termination decrees, nor is either a party to the instant appeal.
The trial court has set forth the relevant factual and procedural history of this case in its adjudication and termination orders of May 9, 2017, which we adopt for purposes of this appeal as well as further appellate review. See In Re Adoption of O.L.R., A Minor, Adjudication and Termination Order, 5/9/2017, at 1-35; In Re Adoption of C.L., A Minor, Adjudication and Termination Order, 5/9/2017, at 1-36. Significantly, on January 20, 2015, the Agency filed an application for emergency protective custody of the Children following Mother's suicide attempt and departure from the hospital against medical advice, admitted use of drugs, and several mental health diagnoses. Over the next two years, Mother was unable to resolve the unsuitable nature of her home or satisfactorily address her mental health.
On January 25, 2017, the Agency filed petitions to involuntarily terminate Mother's parental rights to the Children and to change their permanency goal to adoption. The trial court held evidentiary hearings on March 20, 2017, and on March 28, 2017. On May 9, 2017, the trial court terminated Mother's parental rights to the Children under 23 Pa.C.S.A. §2511(a)(2), (5), (8), and (b).
On June 8, 2017, Mother filed notices of appeal, along with concise statements of errors complained of on appeal. On June 13, 2017, the trial court filed a Pa.R.A.P. 1925(a) statement in the matter of each child, suggesting that Mother had waived all claims for lack of specificity but directing our attention to its prior opinions entered on May 9, 2017. Trial Court Rule of Appellate Procedure 1925(a) Statement, In Re Adoption of O.L.R., A Minor; Trial Court Rule of Appellate Procedure 1925(a) Statement, In Re Adoption of C.L., A Minor, 6/13/2017. This Court, acting sua sponte, consolidated Mother's appeals on July 5, 2017.
In her brief on appeal, Mother raises the following issue:
1. Whether the trial court erred in granting the York County Office of Children, Youth and Family's petition for involuntary termination of parental rights of [R.L.] where the agency failed to meet its burden of proving the elements of 23 Pa.C.S. § 2511 and termination would not be in the best interest of the children.Mother's Brief, at 4.
Mother raised a single, identical issue in the appeal of each child. Additionally, Mother has waived any challenge to the change in the Children's permanency goal to adoption under 42 Pa.C.S. § 6351 by failing to raise the issue in her concise statement and Statement of Questions Involved in her brief. See Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his concise statement of errors complained of on appeal and the Statement of Questions Involved in his brief on appeal). However, we decline the trial court's invitation to find waiver of Mother's single issue in the interest of judicial economy. --------
In reviewing an appeal from an order 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.; 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 we 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).In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (some formatting added).
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 decision to terminate parental rights if we agree with the trial court as to any one subsection of section 2511(a) and its decision as to section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). The trial court terminated Mother's parental rights to the children under section 2511(a)(2), (5), (8), and (b), which provide, in relevant part, 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.
* * *
(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.
* * *
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.
* * *
23 Pa.C.S. § 2511(a)(2), (5), (8), and (b). We will focus on Section 2511(a)(2), and adopt the trial court's discussion in its adjudication and termination orders as this Court's own.
(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 S.P., 47 A.3d at 827 (some formatting added).
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).
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.
With regard to section 2511(a)(2), Mother argues that the trial court erred when it concluded that the Agency presented clear and convincing evidence in support of its petitions for termination for parental rights. Mother's Brief at 9. Mother asserts that she has remedied the conditions that brought the Children into care and that she is capable of parenting them at this time. Id. at 12-13. Additionally, Mother suggests that her sustained participation in various resources over the years undermines the evidence presented by the Agency. Id.
The trial court assessed in depth the evidence regarding Mother's repeated incapacity to parent Children, and her inability to remedy the conditions and causes of her incapacity to parent Children, which we adopt herein. See In Re Adoption of O.L.R., A Minor, Adjudication and Termination Order, 5/9/2017; In Re Adoption of C.L., A Minor, Adjudication and Termination Order, 5/9/2017. The trial court found that Mother's mental health conditions remain an ongoing concern, and her inability to properly guide the children or improve home conditions could not be remedied with prompting and assistance from service providers. Id. at 42-44. Moreover, the trial court specifically noted that the environmental conditions that led to the removal of the children were not beyond Mother's control, and the conditions remained the same, if not worse, in May 2017. In Re Adoption of C.L., A Minor, Adjudication and Termination Order, 5/9/2017, at 44-45, 48, 52.
After a careful review of the record, we find that termination of Mother's parental rights to the Children was warranted pursuant to section 2511(a)(2), as the evidence showed that Mother will be unable to remedy the conditions that led to the removal of the Children within a reasonable period of time, if ever. As there is competent evidence in the record that supports the trial court's findings and credibility determinations, we discern no abuse of the trial court's discretion in terminating Mother's parental rights to the Children under section 2511(a)(2). In re Adoption of S.P., 47 A.3d at 826-27.
Next, this Court has stated that the focus of our inquiry 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 recently 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).
In the present matter, the trial court considered the needs and welfare of the Children and provided an explanation of why its termination decision was not based on matters that were outside of Mother's control. We adopt the trial court's discussion herein. See In Re Adoption of O.L.R., A Minor, Adjudication and Termination Order, 5/9/2017, at 46-50; In Re Adoption of C.L., A Minor, Adjudication and Termination Order, 5/9/2017, at 49-53. The trial court properly considered the best interests of the Children in rendering its decision that although there was evidence of a bond between the Children and Mother, it was in their best interests to sever that bond for their safety and security needs. In re T.S.M., 71 A.3d at 268-69.
After a careful review of the record, we find that termination of Mother's parental rights to the Children was warranted pursuant to section 2511(b), as the evidence showed that the Children's developmental, physical and emotional needs and welfare will best be met by the termination of Mother's parental rights. Further, the evidence showed that the bond between Mother and Children has weakened over time, and the effect of severing the bond does not seem to be severe. See In Re Adoption of O.L.R., A Minor, Adjudication and Termination Order, 5/9/2017, at 48; In Re Adoption of C.L., A Minor, Adjudication and Termination Order, 5/9/2017, at 51. Moreover, the trial court concluded that the unaddressed safety concerns outweigh the bond between Children and Mother.
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).
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 mother would be contrary to child's best interests). "[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). It is well-settled that "we 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 found that Mother "does love her children and is able to provide minimal comfort, but is not able to provide security and stability. Mother has not been able to adequately perform her parental duties, has not adequately addressed her mental health, continues to use marijuana, and remains in a relationship that involved domestic violence." See In Re Adoption of O.L.R., A Minor, Adjudication and Termination Order, 5/9/2017, at 48; In Re Adoption of C.L., A Minor, Adjudication and Termination Order, 5/9/2017, at 51. As we stated in In re Z.P., the Children's lives "simply cannot be put on hold" in the hope that Mother will summon the ability to handle the responsibilities of parenting. In re Z.P., 994 A.2d at 1125. Here, Mother's right to the custody and rearing of her Children was converted to the Children's right to have proper parenting and fulfillment of their potential in a permanent, healthy, safe environment. In re B., N.M., 856 A.2d at 856.
As there is competent evidence in the record that supports the trial court's findings and credibility determinations, we would find no abuse of the trial court's discretion in terminating Mother's parental rights to the Children under section 2511(b). In re Adoption of S.P., 47 A.3d at 826-27. We, therefore, affirm the trial court's decrees terminating Mother's parental rights to the Children.
Decrees affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/13/2018
Image materials not available for display.