Opinion
J-S32003-17 No. 1962 EDA 2016 No. 1963 EDA 2016 No. 1964 EDA 2016 No. 1965 EDA 2016
05-23-2017
IN THE INTEREST OF: N.A.P., A MINOR APPEAL OF: D.P, MOTHER IN THE INTEREST OF: D.N.P., A MINOR APPEAL OF: D.P, MOTHER IN THE INTEREST OF: B.A.P., A MINOR APPEAL OF: D.P, MOTHER IN THE INTEREST OF: K.D.P., A MINOR APPEAL OF: D.P, MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree May 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court Juvenile Division at No(s): 51-FN-002024-2013, CP-51-AP-0000255-2016 Appeal from the Decree May 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court Juvenile Division at No(s): 51-FN-002024-2013, CP-51-AP-0000254-2016 Appeal from the Decree May 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court Juvenile Division at No(s): 51-FN-002024-2013, CP-51-AP-0000253-2016 Appeal from the Decree May 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court Juvenile Division at No(s): 51-FN-002024-2013, CP-51-AP-0000243-2016 BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, D.P. ("Mother"), appeals from the decrees entered in the Philadelphia County Court of Common Pleas Family Court Juvenile Division, which granted the petitions of the Department of Human Services ("DHS") for involuntary termination of Mother's parental rights to her four minor children, N.A.P., D.N.P., B.A.P., and K.D.P. ("Children"). We affirm.
In its opinion, the Juvenile Court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we will only briefly summarize them. Mother is the natural parent of Children. DHS first became involved with the family on May 10, 2013, after receiving a general protective service report alleging, inter alia, Mother had left B.A.P. and another child home alone for more than 24 hours. The report further alleged that Mother was unemployed, suffered from substance abuse, and had a history of domestic violence. DHS obtained an order for protective custody of D.N.P. and B.A.P. on May 20, 2013. DHS returned D.N.P. and B.A.P. to Mother on August 23, 2013. On March 31, 2014, St. Joseph's Hospital staff observed Mother under the influence of an unknown substance that they believed was Phencyclidine (PCP). Mother was belligerent with the hospital staff and refused to cooperate with DHS. As a result, DHS obtained an order for protective custody of N.A.P., D.N.P., and B.A.P on April 1, 2014. The court adjudicated N.A.P., D.N.P., and B.A.P dependent on April 10, 2014. K.D.P. was born in November 2014 and lived with Mother until November 5, 2015, when Mother stabbed a neighbor, fled the scene, and left K.D.P. alone in her crib. Later that evening, the police found K.D.P. alone and alerted DHS. DHS obtained an order for protective custody of K.D.P. Police arrested Mother for the stabbing on November 6, 2015. The court adjudicated K.D.P. dependent on November 10, 2015, and placed her in foster care.
On March 22, 2016, DHS filed petitions for the involuntarily termination of Mother's parental rights to N.A.P., D.N.P., and B.A.P. pursuant to 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b) of the Adoption Act, and a petition for the involuntarily termination of Mother's parental rights to K.D.P. under Sections 2511(a)(1), (a)(2), and (b). At the May 23, 2016 termination hearing, DHS added Section 2511(a)(5) to its petition to terminate Mother's parental rights to K.D.P. On May 23, 2016, the court entered decrees involuntarily terminating Mother's parental rights to Children under Sections 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). The court also terminated the parental rights of the fathers, who did not contest termination; they are not involved in this appeal. Mother timely filed notices of appeal and concise statements of errors complained of on appeal per Pa.R.A.P. 1925(a)(2)(i).
Mother raises three issues for our review:
WHETHER THE [JUVENILE] COURT ERRED IN TERMINATING [MOTHER'S] PARENTAL RIGHTS UNDER 23 PA.C.S.A. [§] 2511(A)(1), THE EVIDENCE HAVING BEEN INSUFFICIENT TO ESTABLISH MOTHER HAD EVIDENCED A SETTLED PURPOSE OF RELINQUISHING PARENTAL CLAIM, OR HAVING REFUSED OR FAILED TO PERFORM PARENTAL DUTIES?(Mother's Brief at 5).
WHETHER THE...EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT [MOTHER] HAD REFUSED OR FAILED TO PERFORM PARENTAL DUTIES, CAUSED CHILDREN TO BE WITHOUT ESSENTIAL PARENTAL CARE, THAT CONDITIONS HAVING LED TO PLACEMENT HAD CONTINUED TO EXIST, OR FINALLY THAT ANY OF THE ABOVE COULD NOT HAVE BEEN REMEDIED?
WHETHER THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT TERMINATION OF PARENTAL RIGHTS WOULD BEST SERVE THE NEEDS AND WELFARE OF...CHILDREN, UNDER 23 PA.C.S.[A. §] 2511(B)?
Appellate review of 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).
DHS filed petitions for the involuntary termination of Mother's parental rights to Children 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.
* * *
(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.A. § 2511(a)(1), (a)(2), (a)(5), (a)(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.
(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.
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).
Mother limits her appellate challenge to the court's termination decisions to Sections 2511(a)(1), (a)(2), and (b). Therefore, we will not review the court's decisions under Sections 2511(a)(5) and (a)(8). --------
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) (internal citations omitted).
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, 337 (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).
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. 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.In re Z.P., supra at 1121 (internal citations omitted).
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.
"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 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 [C]ourt has held that the parental obligation is a positive duty which requires affirmative
performance.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 [the child's] potential in a permanent, healthy, safe environment." Id. at 856.
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 his or her physical and emotional needs.
After a thorough review of the record, the briefs of the parties, the applicable law, and the opinion of the Honorable Lyris F. Younge, we conclude Mother's issues merit no relief. The Juvenile Court opinion comprehensively discusses and properly disposes of the questions presented. ( See Juvenile Court Opinion, filed December 15, 2016, at 4-7) (finding: (1-2) Mother received Family Single Case Plan ("FSP") permanency objectives in April 2014 to address mental health issues, substance abuse, unstable employment, and visitation; DHS social worker credibly testified Mother had history of mental health concerns, substance abuse, and domestic violence; throughout dependency, Mother failed to procure steady employment, maintain sobriety for substantial period, or consistently participate in either intensive outpatient drug and alcohol cessation program or dual diagnosis treatment program for mental health ailments; prior to Mother's incarceration, Mother visited N.A.P., D.N.P., and B.A.P. weekly; upon her release from imprisonment, Mother visited Children sporadically; DHS did not allow Mother to have unsupervised visits with Children throughout dependency; at time of termination hearing, N.A.P., D.N.P., and B.A.P. had been in foster care for 23 months [and K.D.P. had been in foster care for 7½ months], yet Mother had failed to meet her FSP objectives; Mother did not remedy conditions, which led to Children's placement in foster care, and she was unlikely to remedy conditions within reasonable time; (3) DHS employee credibly testified Children would not suffer irreparable harm if court terminated Mother's parental rights to Children; N.A.P., D.N.P., and B.A.P. displayed no negative behaviors when Mother was incarcerated or when their visits with Mother became more sporadic; Children have stronger bond with foster mother, whom N.A.P., D.N.P., and B.A.P. acknowledge as "mom"; termination of Mother's parental rights is in Children's best interests). Accordingly, we affirm on the basis of the Juvenile Court's opinion.
Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/23/2017
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