Opinion
J-S69001-15 No. 711 EDA 2015 No. 712 EDA 2015 No. 715 EDA 2015 No. 716 EDA 2015
11-23-2015
IN THE INTEREST OF: E.R.K., A MINOR APPEAL OF: M.K., MOTHER IN THE INTEREST OF: T.L.K., A MINOR APPEAL OF: M.K., MOTHER IN THE INTEREST OF: H.K., A MINOR APPEAL OF: M.K., MOTHER IN THE INTEREST OF: B.M.K., A MINOR APPEAL OF: M.K., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered February 11, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001500-2011; DP-51-AP-0000304-2013 Appeal from the Judgment Entered February 11, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001501-2011; DP-51-AP-0000302-2013 Appeal from the Judgment Entered February 11, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0025103-2010; DP-51-AP-0000303-2013 Appeal from the Judgment Entered February 11, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0025102-2010; DP-51-AP-0000301-2013 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, M.K. ("Mother"), appeals from the judgments entered in the Philadelphia Court of Common Pleas, which involuntarily terminated her parental rights to her minor children, E.R.K, T.L.K, H.K., and B.M.K ("Children"). Upon a thorough review of the record, we affirm.
The termination hearing for E.R.K., T.L.K., H.K., and B.M.K. ultimately concluded on February 11, 2015, with the trial court involuntarily terminating Mother's parental rights. On March 9, 2015, Mother filed appeals at docket Nos. 711 EDA 2015, 712 EDA 2015, 715 EDA 2015, and 716 EDA 2015. Notwithstanding the initial appeal filing date, these consolidated appeals were not listed for disposition due to the delay in transmittal of the certified record to this Court. The certified record was first due by April 8, 2015. On April 22, 2015, this Court attempted to contact the trial court, but had to leave a voicemail. On April 28, 2015, the trial court contacted this Court to inform that they were awaiting notes of testimony yet to be transcribed. On May 5, 2015, this Court again inquired about the status of the certified record, and the trial court responded that the opinion and certified record would be ready by May 19, 2015. This Court finally received both the certified record and the opinion on May 19, 2015, causing the briefing schedule to be delayed over one month. Further, the court granted Mother four extensions of time within which to file a brief and each Appellee/Participant also requested and received an extension. See In re T.S.M., 620 Pa. 602, 609 n.7, 71 A.3d 251, 255 n.7 (2013) (reproaching this Court for unexplained delays in disposition of cases involving at-risk children, causing them to remain in stasis for substantial, unnecessary time).
In its opinion, the trial court fully sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
The trial court's opinion states that the first termination of parental rights hearing occurred on October 14, 2013, when in fact, it occurred on October 14, 201 4. --------
Mother raises the following issues for our review:
DID DHS MAKE REASONABLE EFFORTS TO ASSIST MOTHER IN BEING REUNITED WITH HER [CHILDREN]?(Mother's Brief at 5).
DID [DHS] SUSTAIN [ITS] BURDEN THAT MOTHER'S RIGHTS SHOULD BE TERMINATED?
DID [DHS] SUSTAIN [ITS] BURDEN REGARDING THE REQUIREMENTS OF 23 PA.C.S.A § 2511(B)?
The standard and scope of review applicable in a termination of parental rights case is as follows:
When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that it would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.
Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.
The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. We may uphold a termination decision if any proper basis exists for the result reached. If the trial court's findings are supported by competent evidence, we must affirm the court's decision, even if the record could support an opposite result.In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted). See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super. 2008) (en banc).
DHS sought the involuntary termination of Mother's parental rights on the following grounds:
§ 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:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(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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(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.
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(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.
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23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8); and (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.
"Parental rights may be involuntarily terminated where any one subsection of Section 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions." In re Z.P., 994 A.2d 1108, 1117 (Pa.Super. 2010).
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...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.In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations omitted). Regarding the six-month period prior to filing the termination petition:
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for...her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).
[T]he trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of...her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005).
The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, 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 (Pa.Super. 2002). "Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities." Id. at 340. The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger , 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced that under what is now Section 2511(a)(2), "the petitioner for involuntary termination must prove (1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied." In Interest of Lilley , 719 A.2d 327, 330 (Pa.Super. 1998).
"Termination of parental rights under Section 2511(a)(5) requires that: (1) the child has been removed from parental care for at least six months; (2) the conditions which led to removal and placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Z.P., supra at 1118.
"[T]o terminate parental rights under Section 2511(a)(8), the following factors must be demonstrated: (1) the child has been removed from parental care for [twelve] months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super. 2003).
Under Section 2511(b), the court must consider whether termination will meet the child's needs and welfare. In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006). "Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond." Id. at 520. Significantly:
In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship. When conducting a bonding analysis, 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., supra at 1121 (internal citations omitted).
"The statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state, may properly be considered unfit and have his parental rights terminated." In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent exert [herself] to take and maintain a place of importance in the child's life.
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship to the best of...her ability, even in difficult circumstances. A parent must utilize 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. 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 [the child's] physical and emotional needs.In re B., N.M., supra at 855 (internal citations omitted). "[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...her potential in a permanent, healthy, safe environment." Id. at 856.
Importantly, neither Section 2511(a) nor Section 2511(b) requires a court to consider at the termination stage, whether an agency provided a parent with reasonable efforts aimed at reunifying the parent with her children prior to the agency petitioning for termination of parental rights. In re D.C.D., ___ Pa. ___, ___, 105 A.3d 662, 672 (2014). An agency's failure to provide reasonable efforts to a parent does not prohibit the court from granting a petition to terminate parental rights under Section 2511. Id. at ___, 105 A.3d at 675.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Joseph L. Fernandes, we conclude Mother's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed May 15, 2015, at 4-11) (finding: (1) Mother failed to make any progress during forty-three months Children were in placement; DHS provided Mother with Family Service Plan ("FSP") objectives to help Mother achieve goal of reunification, but Mother failed to satisfy majority of those objectives; record establishes that DHS offered reasonable and adequate services to Mother to remedy conditions that brought Children into system, yet Mother continued to exhibit lack of capacity to Parent; in light of Mother's lack of improvement despite assistance from DHS and fact that Children have been in custody of maternal grandmother for past three and one-half years, it is in best interest of Children to terminate Mother's parental rights and change goal to adoption; (2) Mother continuously failed to meet majority of her FSP objectives during forty-three months Children were in placement, despite DHS' efforts to make Mother aware of those objectives; at Mother's permanency review hearings, court frequently found Mother minimally or moderately compliant with her FSP objectives; DHS social worker testified she would not recommend Mother for unsupervised visits because Mother was unable to care for all Children at one time and Mother frequently used profanity and engaged in age inappropriate conversations with Children; DHS social worker also stated Mother made little progress with her FSP objectives, as shown by Mother's failure to complete her mental health objective and Mother's inability to apply what she learned in parenting classes to her interactions with Children; Mother continuously failed to remedy causes that brought Children into system, and Mother is unable to provide stability Children need; Mother's limited success with services provided by DHS demonstrates that Mother cannot overcome her barriers to effective parenting and Children are no closer to reunification with Mother than when Children entered system forty-three months ago; at this point, Children need permanency, which Mother cannot provide; in light of Mother's failure to remedy conditions that brought Children into system and Mother's inability to adequately perform her parental duties, court concluded sufficient evidence existed for termination of Mother's parental rights under 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), and (a)(8); (3) termination of Mother's parental rights will not cause Children to suffer irreparable harm; Children's foster parent, their maternal grandmother, has parent-child bond with all four Children; DHS social worker testified Children have lived as family with maternal grandmother for last three and one-half years, and Children are doing very well in pre-adoptive home; maternal grandmother is actively involved in Children's school, activities, and medical appointments, while Mother is minimally involved in these events; Mother visits Children for only 2 hours every Saturday and is minimally involved in Children's lives; Mother and Children do not share parent-child bond due to Mother's lack of contact with Children and termination of Mother's parental rights would not destroy existing and necessary relationship between Mother and Children; record establishes Mother's lack of compliance with FSP objectives, Mother's inability to care for Children, and lack of parent-child bond between Mother and Children, all of which justify termination of Mother's parental rights; thus, court correctly terminated Mother's parental rights under Section 2511(b) and changed goal to adoption, which will best serve emotional needs and welfare of Children). Accordingly, we affirm on the basis of the trial court's opinion.
Judgments affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/23/2015
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