Opinion
J-S10002-16 No. 2188 EDA 2015
02-26-2016
IN THE INTEREST OF: T.W., A MINOR APPEAL OF: D.W., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 17, 2015
In the Court of Common Pleas of Monroe County
Domestic Relations at No(s): 45-FN-41-20; 48 OCA 2013; CP-45-DP-0000064-2012 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, D.W. ("Mother"), appeals from the order entered in the Monroe County Court of Common Pleas, which involuntarily terminated her parental rights to minor child, T.W. We affirm.
In its written opinion, the trial court fully sets forth the relevant facts and procedural history of this case. Therefore, we will only briefly summarize them. Mother and Father have had a volatile relationship since before T.W. was born in 2012. The Monroe County Children and Youth Services ("CYS") became involved in this case on June 30, 2012, upon learning that T.W. had been injured when Father threw her, in her car seat, out of a vehicle during an argument with Mother. T.W. was placed in CYS' custody on July 1, 2012, because Mother and Father were both incarcerated; T.W. has been in foster care since that time. The court adjudicated T.W. dependent on August 3, 2012, with an initial permanency goal of reunification. Following several review hearings, the court changed the permanency goal to adoption on January 24, 2014. Mother filed an appeal from that order, which this Court affirmed on August 22, 2014. See In re T.W., 106 A.3d 172 (Pa.Super. 2014) (unpublished memorandum).
( See Trial Court Opinion, filed April 11, 2014, at 1-14) (Permanency/goal change appeal).
Meanwhile, on December 3, 2013, CYS filed a petition for involuntary termination of the parental rights of Mother and Father. The court conducted multiple hearings on the termination petition throughout 2014 and 2015. On June 12, 2015, the court terminated Mother's and Father's parental rights to T.W. Mother timely filed on July 10, 2015, a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
Father filed a separate appeal from the order terminating his parental rights, which is docketed at No. 2113 EDA 2015 (J-S10001-16).
Mother raises the following issues for our review:
DID THE TRIAL COURT ERR IN TERMINATING THE PARENTAL RIGHTS OF [MOTHER] WHERE CYS DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE THAT:
(A) [MOTHER] FAILED TO PERFORM PARENTAL DUTIES FOR A PERIOD OF MORE THAN SIX (6) MONTHS;
(B) MOTHER FAILED TO REMEDY THE CONDITIONS AND CAUSES OF THE ALLEGED ABUSE;
(C) MOTHER FAILED TO REMEDY THE CONDITIONS WHICH LED TO THE REMOVAL OR PLACEMENT OF [T.W.], AND;
(D) TERMINATION OF PARENTAL RIGHTS WOULD BEST SERVE THE NEEDS AND WELFARE OF [T.W.]
(Mother's Brief at 4-5).
DID THE TRIAL COURT ERR IN TERMINATING [MOTHER'S] PARENTAL RIGHTS WHERE CYS FAILED TO MAKE REASONABLE EFFORTS TOWARDS REUNIFICATION DESPITE THE TRIAL COURT'S CONCURRENT GOAL OF REUNIFICATION?
DID THE TRIAL COURT PROPERLY DISREGARD MOTHER'S CONTINUED EFFORTS TO COMPLY WITH THE FAMILY SERVICE PLAN AND REFRAIN FROM INCIDENTS OF DOMESTIC ABUSE?
Appellate review in termination of parental rights cases implicates the following principles:
In cases involving termination of parental rights: "our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child."In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. ... 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.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).
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.
In re Z.P., supra at 1115-16 (quoting 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)).
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations and quotation marks omitted). 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. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). If the 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 R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super. 2004).
CYS sought 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 [her] 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.
* * *
(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.
* * *
(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.A. § 2511(a)(1), (2), (5), (8), and (b).
"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., supra at 1117.
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...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.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.
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).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:
[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 [her] 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.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.
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.
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 child 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 oral opinion of the Honorable Jonathan Mark, we conclude Mother's issues merit no relief. The trial court's oral opinion comprehensively discusses and properly disposes of the questions presented. ( See N.T. Oral Opinion, 6/12/15, at 10-42 and attached addendum) (finding: at time of termination hearing, T.W. had been in CYS' care for approximately 33 months; Mother and Father had volatile relationship that included criminal charges, protections from abuse ("PFA"), and domestic issues; underlying issues between Mother and Father have not been resolved; T.W.'s safety, health and well-being are paramount concerns and must be ensured; neither Mother nor Father has demonstrated current ability to provide requisite assurance of T.W.'s safety; Mother has not demonstrated necessary protective capacities; Mother incurred criminal charges after she admitted to lying to authorities about Father's behavior toward T.W.; Mother has been unable to extricate herself from relationship with Father, protect herself from Father's abuse, restrain her own violent and abusive tendencies, or stop her pathological lying; Mother failed to appear for last several visits with T.W. prior to start of termination hearings; under Section 2511(a)(1), Mother and Father made progress towards some of goals but failed to take necessary steps toward reunification with T.W.; Mother and Father failed to perform parental duties for more than six months, as both parents were incarcerated and spent majority of time fighting with each other; CYS met statutory grounds for termination under subsection (a)(1); Mother and Father refused to provide essential parental care, control, and assistance to T.W.; CYS established grounds for termination under Section 2511(a)(2); grounds for termination also existed under Section 2511(a)(8), because T.W. had been removed from Mother and Father's care for at least twelve months, condition that led to T.W.'s removal still exists, and termination of Mother's and Father's parental rights best serves needs and welfare of T.W.; court properly considered Mother and Father's post-petition efforts as grounds for termination because termination petition was filed in December 2013, and first termination hearing was not held until one year later; reunification efforts are not valid consideration under subsections (a)(1), (a)(2), and (a)(8); T.W.'s foster family provided love, care, companionship and support that Section 2511(b) requires, while Mother and Father were busy filing criminal charges and PFAs against each other and exhibiting pathological codependency; T.W. has strong bond with foster family and severing that bond would be detrimental to her; T.W. has not developed any traditional bond with Mother and Father, as she spent her first several months in hospital and has had only supervised visits with parents for most of her life; only bond T.W. has with Mother and Father is biological; severing T.W.'s bond with Mother and Father pales in comparison to severing bond with foster parents, who wish to adopt T.W.; safety concerns also exist with Mother's and Father's care of T.W.; CYS established grounds for termination under subsection (b); current placement goal of adoption remains appropriate and necessary). The record supports the court's decision; therefore, we have no reason to disturb it. Accordingly, we affirm on the basis of the court's oral opinion issued at the termination proceeding.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/26/2016
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