Opinion
J-S38032-17 No. 2831 EDA 2016 No. 2832 EDA 2016 No. 2833 EDA 2016
06-27-2017
IN THE INTEREST OF: Z.E.V., A MINOR APPEAL OF: N.V., MOTHER IN THE INTEREST OF: A.S.R., A MINOR APPEAL OF: N.V., MOTHER IN THE INTEREST OF: S.S.V., A MINOR APPEAL OF: N.V., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated August 2, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000640-2016, FID: 51-FN-002378-2012 Appeal from the Order Dated August 2, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000641-2016, FID: 51-FN-002378-2012 Appeal from the Order Entered August 2, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000642-2016, FID: 51-FN-002378-2012 BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, N.V. ("Mother"), appeals from the orders entered in the Philadelphia County Court of Common Pleas Family Court, which changed the family goal to adoption and granted the petitions of the Department of Human Services ("DHS") for involuntary termination of Mother's parental rights to her minor children, Z.E.V., A.S.R., and S.S.V. ("Children"). We affirm.
The Family Court changed the family goal from reunification to adoption and involuntarily terminated Mother's parental rights to Children on August 2, 2016. Mother timely filed notices of appeal on September 1, 2016, and a briefing schedule was ordered on October 19, 2016. Notwithstanding the initial appeal filing date, the appeals were dismissed on November 7, 2016, for counsel's failure to comply with Pa.R.A.P. 3517 (governing filing of docketing statement). The docketing statements were received on November 8, 2016, and the appeals were quickly reinstated sua sponte by order of November 10, 2016. The appeals were consolidated sua sponte on November 15, 2016, for disposition. When counsel failed to file an appellate brief by November 18, 2016, this Court remanded the matter to the Family Court to determine whether counsel had abandoned Mother on appeal and retained jurisdiction. The cases were not listed sooner for disposition due to the delay caused by counsel. Although due on 3/14/17, counsel filed Mother's appellate brief on March 16, 2017. The cases were promptly listed at the conclusion of briefing. We offer this procedural history to explain the delay in the resolution of this child-fast-track appeal. 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 Family Court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Mother raises five issues for our review:
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE PARENTAL RIGHTS OF [MOTHER] UNDER 23 PA.C.S.A. § 2511(A)(1)?
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE PARENTAL RIGHTS OF [MOTHER] UNDER 23 PA.C.S.A. § 2511(A)(2)?
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE PARENTAL RIGHTS OF [MOTHER] UNDER 23 PA.C.S.A. § 2511(A)(5)?(Mother's Brief at 5).
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE PARENTAL RIGHTS OF [MOTHER] UNDER 23 PA.C.S.A. § 2511(A)(8)?
WHETHER THE TRIAL COURT ERRED BY FINDING, UNDER 23 PA.C.S.A. § 2511(B), THAT TERMINATION OF [MOTHER'S] PARENTAL RIGHTS BEST SERVES THE CHILDREN'S DEVELOPMENTAL, PHYSICAL AND EMOTIONAL NEEDS AND WELFARE?
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 a petition 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 [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.
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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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(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) (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 (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) [t]he 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. 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.
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.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.
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 well-reasoned opinion of the Honorable Vincent W. Furlong, we conclude Mother's issues merit no relief. The Family Court opinion comprehensively discusses and properly disposes of the questions presented. ( See Family Court Opinion, filed October 17, 2016, at 7-11) (finding: under Section 2511(a), Children have been out of Mother's care for at least four years; record demonstrated Mother has not complied with her 2012 FSP objectives or subsequent court orders since 2012; Mother has consistently tested positive for drugs, and Mother has been inconsistent and sporadic in her attendance to court-ordered drug and alcohol counseling; Mother tested positive for drugs as recently as July 22, 2016; ARC discharged Mother for nonparticipation; Mother failed to achieve stable housing; Mother's visitation with Children was sporadic and inconsistent, and her lack of sobriety was of concern; Mother has not taken interest in Children's education and medical care; under Section 2511(b), Children love their Mother but their bond with her is weak; Children do not want to be reunified with Mother because they do not trust her; Children share parent-child bond with kinship parents; Children look to kinship parents for love, comfort, care, and support; record and testimony presented at termination hearing provided clear and convincing evidence to terminate Mother's parental rights under 23 Pa.C.S.A. § 2511 (a)(1),(2),(5), and (8); court further found, pursuant to 23 Pa.C.S.A. § 2511(b), that termination of Mother's parental rights would not have detrimental effect on Children and would be in Children's best interest). Accordingly, we affirm on the basis of the Family Court opinion.
Orders affirmed.
Justice Fitzgerald did not participate in the consideration or decision of this case. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/27/2017
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