Opinion
J-S06002-20 No. 1953 EDA 2019
03-23-2020
IN THE INTEREST OF: D.A.C.N., A MINOR APPEAL OF: D.N., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 13, 2019
In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000387-2019 BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY LAZARUS, J.:
D.N. (Mother) appeals from the order terminating her parental rights to her two-year-old daughter, D.A.C.N.-A. (Child), pursuant to sections 2511(a)(1), (2), (5), (8) and (b) of the Adoption Act. After our review, we affirm.
The trial court also terminated the parental rights of H.B.C. (Father) on June 13, 2019. Father's appeal is listed before a separate panel of this Court.
Child, born in February 2017, first came to the attention of the Philadelphia Department of Human Services (DHS) when Mother tested positive for phencyclidine (PCP) at the time of Child's birth. At that time, Father was incarcerated. DHS obtained a protective custody order and removed Child from Mother's care. At the February 23, 2017 shelter care hearing, the court determined that Mother was receiving inpatient drug and alcohol treatment at a mother/baby program, and the court ordered Child be reunified with Mother at the facility.
The case became active again in December 2017, following reports that the parents were under the influence of illicit drugs and that Father was verbally abusive. This incident triggered police intervention, after Father threatened to kill everyone at the scene. Police contacted DHS and Emergency Medical Services (EMS) to transport Child to St. Christopher's Hospital for Children for evaluation. Both Mother and Father attempted to remove Child from EMS, pulling on her arms and legs. DHS obtained a protective custody order. Child was evaluated and discharged from the hospital to a foster home.
Following a December 21, 2017 shelter care hearing, the court lifted the protective custody order. The court referred Mother to the Clinical Evaluation Unit (CEU) for a drug screen and granted Mother supervised visits at DHS with Child.
At a January 25, 2018 meeting, the Community Umbrella Agency (CUA)-NorthEast Treatment Center (NET) held an initial planning meeting, setting the goal of reunification with a concurrent goal of adoption. Mother's objectives were to comply with her CEU referral and subsequent recommendation, attend and complete domestic violence classes, obtain stable and appropriate housing, comply with court-ordered visitation, and complete parenting classes.
On February 1, 2018, the court adjudicated Child dependent. The court found aggravated circumstances in that Mother's parental rights to another child had been involuntarily terminated on July 11, 2014. See 42 Pa.C.S.A. § 6302(5). The court referred Mother to CEU for drug and alcohol screens and dual diagnosis assessment (drug and alcohol/mental health), and to the Achieving Reunification Center (ARC) for appropriate services; the court also suspended Mother's visits with Child, issued an aggravated circumstances order, and ordered that DHS discontinue efforts toward reunification. See 42 Pa.C.S.A. § 6302(5) (aggravated circumstances exist where "parental rights of the parent have been involuntarily terminated with respect to a child of the parent); see also Interest of S.U.,204 A.3d 949, 965 (Pa. Super. 2019) (where finding of aggravated circumstances exists, it is within juvenile court's discretion to determine whether reasonable efforts to prevent or eliminate need for removing child from home or to preserve and reunify family shall be made or continue to be made).
Throughout the dependency case, Father failed to comply with the court-ordered permanency plan. In January 2019, Father was arrested on a bench warrant for a probation violation; he had been on probation following a 2015 guilty plea to burglary and conspiracy. Father was sentenced to eleven and one-half months' to twenty-three months' incarceration for the probation violation.
Throughout 2018 and early 2019, the court held several permanency review hearings. At the March 6, 2019 hearing, the court determined Mother was non-compliant with the permanency plan. In particular, she was inconsistent in her attendance at supervised visits and never progressed to unsupervised contact with Child, she tested positive for drugs after completing a treatment program, and she relocated to New York City after Child entered foster care. Although Mother did not provide DHS with an address, she testified at the hearing that she was living in a two-bedroom apartment with her aunt and her cousin in New York, stated the address and indicated that her aunt had given her permission to live there. See N.T. Termination Hearing 6/13/19, at 45-46.
On May 28, 2019, DHS filed goal-change and termination petitions. On June 13, 2019, the court held a termination hearing. At that time, Child was two years old and had been in placement for eighteen months.
At the hearing, JoAnn Braverman, Esquire, represented Child as her Guardian ad litem (GAL), and Sharon Wallis, Esquire, represented Child as her Child Advocate Attorney. Mother was present at the hearing, represented by counsel, and she testified on her own behalf. Lashay Hickenbottom, CUA Case Manager, testified on behalf of DHS. At the conclusion of the hearing, the court terminated Mother's parental rights under 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b). Mother filed this timely appeal. She raises the following issues for our review:
1. Did the trial court err in terminating [Mother's] parental rights under 23 Pa.C.S.A §§ 2511(a)(2), (a)(5) and (a)(8)?Appellant's Brief, at 4.
2. Did the trial court err in finding that termination of Mother's parental rights best served [C]hild's developmental, physical and emotional needs under 23 Pa.C.S.A. § 2511(b)?
In reviewing an appeal from an order terminating parental rights,
[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). 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.In re I.E.P.,87 A.3d 340, 343-44 (Pa. Super. 2014) (quoting In re Adoption of S.P.,47 A.3d 817, 826-27 (Pa. 2012)).
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).
A party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence," a standard that requires evidence 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." In re T.F.,847 A.2d 738, 742 (Pa. Super. 2004) (citation and quotation marks omitted). Further,
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 his or her physical and emotional needs.In the Interest of K.Z.S.,946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).
Mother argues DHS did not meet its burden of establishing grounds for termination by clear and convincing evidence under sections 2511(a)(2), (5) or (8), or establish that termination best served Child's needs and welfare pursuant to section 2511(b). We disagree.
The trial court's opinion thoroughly addresses subsections 2511(a)(1), (2), (5), and (8). In order to affirm the termination of parental rights, this Court need only agree with any one subsection of section 2511(a). See In re B.L.W.,843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In order to terminate parental rights under section 2511(a)(8), DHS must establish the following: (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. 23 Pa.C.S.A. § 2511(a)(8); 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 Child's needs and welfare. 23 Pa.C.S.A. § 2511(b); In re C.P.,901 A.2d 516, 520 (Pa. Super. 2006).
Our review of the hearing testimony and the record before us reveals that the trial court's decision to terminate Mother's parental rights under 23 Pa.C.S.A. §§ 2511(a)(8) and (b) is supported by clear and convincing evidence. See Trial Court Opinion, 9/23/19, at 12-18 (at time of termination hearing, Child had been in DHS custody for eighteen months, Mother was minimally compliant with objectives, including visitation, tested positive for drugs after completing treatment program, and did not comply with court-ordered parenting capacity evaluation; with respect to section 2511(b), case manager testified that despite being "appropriate," Mother and Child were not bonded, Child is thriving in foster care and is "very attached" to foster parent, who had also adopted Child's biological sibling, termination "would not sever an existing and beneficial relationship with Mother[,]" and Child would not suffer irreparable harm if Mother's parental rights were terminated). See also N.T. Termination Hearing, supra at 15-25.
We agree with the trial court that Child deserves permanency and stability, and we find no abuse of discretion or error of law. R.J.T., supra . We affirm the order terminating Mother's parental rights, and we rely upon the opinion of the Honorable Joseph Fernandes. The parties are directed to attach a copy of Judge Fernandes' opinion in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/23/20
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