J.S36031/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.S., A MINOR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: D.F.M. A/K/A D.S., MOTHER, :
: No. 3609 EDA 2013
Appeal from the Order Entered November 14, 2013
In the Court of Common Pleas of Philadelphia County
Family Court No(s).: 51-FN-381481-2009
CP-51-AP-0000651-2013
CP-51-DP-0001847-2011
IN THE INTEREST OF: D.M.S., A MINOR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: D.F.M. A/K/A D.S., MOTHER, :
: No. 3611 EDA 2013
Appeal from the Order Entered November 14, 2013
In the Court of Common Pleas of Philadelphia County
Family Court No(s).: 51-FN-381481-2009
CP-51-AP-0000626-2013
CP-51-DP-0001205-2011
BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 08, 2014
*
Former Justice specially assigned to the Superior Court.
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Philadelphia County Court of Common Pleas on November 14, 2013,
terminating her parental rights to her twin sons, A.J.S.1 and D.M.S.2
adoption.3
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
On [May 5, 2008], [t]he Department of Human Services
l of
Philadelphia. [Children] were exposed to illegal drugs
during the pregnancy and were hospitalized after birth for
three weeks for observation.
The [DHS] reports show a lengthy history with the
family due to allegations of ongoing substance abuse by
[Mother. DHS] obtained information of numerous eviction
notices and shut off notices for utility services at the family
home.
* * *
On June 11, 2011, [DHS] learned the child, D.S.,
suffered abrasions to his face and bruises on his body
which appeared to be at different stages of healing. Upon
-concussion
1
A.J.S. and A.S. are the same child.
2
D.M.S. and D.S. are the same child.
3
These appeals were consolidated sua sponte by order of this Court on
January 28, 2014.
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associated with self-injuring symptoms and symptoms of
being developmentally delayed, with delayed gross motor
skills and speech delays. The primary care physician
recommendation of Early Intervention services.
On June 12, 2011, [DHS] did a home assessment of
4
and [Mother] and found the home did
not have proper utilities. [DHS] obtained an Order of
A shelter care hearing was held on June 16, 2011,
[following which the Master] lifted the OPC and ordered [ ]
D.S. to be temporarily committed to [DHS]. [ ] D.S. was
placed in the care of a family member. It was reported
[Mother] had a history of drug abuse and [Father] used
drugs in front of [Children].
An adjudicatory hearing was held on [June 21, 2011].
D.S. was [deemed] dependent and committed [ ] to
[DHS]. The [c]ourt referred [Mother] to the [c]linical
[e]valuation [u]nit for a forthwith drug screen, dual
diagnosis, assessment and monitoring. Both parents were
ordered to the Achieving Reunification Center (ARC)
program for reunification services.
On September 3, 2011, [DHS] received a General
was under the influence of drugs and was causing
confusion in the home where [Children] were located. A
substantiated report alleged that [Mother] and [Father]
were using heroin in front of [Children]. A family member
visited the home and removed [Children] from the home.
The family member refused to return [Children].
On September 8, 2011, [DHS] learned [Mother] was
incarcerated in prison in Delaware [C]ounty for [a]
probation violation for testing positive for drugs. It was
also alleged [Father] was incarcerated [ ].
4
Father is not a party to this appeal.
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On September 21, 2011, [DHS] obtained an [OPC] for
A.S.
An initial permanency review hearing was held for [ ]
D.S. on September 21, 2011 [ ]. The [c]ourt ordered D.S.
to remain committed to [DHS]. The [c]ourt received a
court ordered drug screens.
A shelter care hearing was held for [ ] A.S. on
September 22, 2011. [A.S.] was adjudicated dependent
and committed to DHS on October 3, 2011.] The [c]ourt
lifted the OPC and ordered the temporary commitment to
[DHS] to stand. [Neither Mother] nor [Father] attended
the hearing.
A permanency review hearing was held on December
13, 2011 for [ ] A.S. The [c]ourt ordered [Children] to
remain as placed and committed to [DHS]. [Mother and
Father] remain incarcerated.
On April 23, 2012, [Father] pled guilty to criminal
charges of theft and was sentenced to a maximum of 23
months [sic] incarceration. [Father] had a lengthy history
of incarcerations from 2006 to present.
[DHS]. The [FSP] objectives for the parents were (1) to
continue to occupy suitable housing for family with suitable
space, heat and all other operable utilities, (2) to achieve
and maintain recovery from drug and/or alcohol problems
(3) to sign authorization forms to allow the release of
copies of the evaluation and progress reports (4) to
comply with all treatment recommendation [sic] including
therapy and/or medications as prescribed. The objectives
specifically identified for [M]other were (1) continue to
attend drug/alcohol program and comply with
requirements, (2) participate in mental health evaluation
and treatment and (3) to maintain employment.
The matter was then listed on a regular basis . . . and
evaluated for the purpose of determining or reviewing the
permanency plan of the child [sic] with the goal of
reunification of the family.
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In
addressing the lack of compliance with suitable housing,
and drug and alcohol treatments.
Trial Ct. Op., 2/6/14, at 2-3 (unpaginated). We add that since 2011,
parental rights to Children. The petitions alleged grounds for termination
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Following a
hearing on the petitions on November 14, 2013, the trial court granted
.5
Mother raises the following issues for our review:
1.
should be terminated?
2. Did the trial court err in determining that it was in the
al
rights by finding there was no bond between [Children]
and [Mother].
Our standard and scope of review is well-established:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the
5
Mother and the trial court complied with Pa.R.A.P. 1925.
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findings and legal conclusions. However, our standard of
only if we conclude that the trial court abused its
discretion, made an error of law, or lacked competent
is entitled to the same deference as a jury verdict.
In re L.M.
standard of review requires [u]s to accept the findings of fact and credibility
In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).
Furthermore:
Termination of parental rights is controlled by statute.
See 23 Pa.C.S.A. § 2511 . . . . Our case law has made
clear that under Section 2511, the court must engage in a
bifurcated process prior to terminating parental rights.
Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and
statutory grounds for termination delineated in Section
conduct warrants termination of his or 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. One major aspect of the needs and
welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close
attention paid to the effect on the child of permanently
severing any such bond. Id.
In re L.M., 923 A.2d at 511 (some citations omitted).
We have previously stated:
The standard of clear and convincing evidence is
and convincing as to enable the trier of fact to come
to a clear conviction, without hesitance, of the truth
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that a court must examine the individual
circumstances of each and every case and consider
all explanations offered by the parent to determine
if the evidence in light of the totality of the
circumstances clearly warrants termination.
In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
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
while others provide the child with his or her physical and
emotional needs.
In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).
Before filing a petition for termination of parental rights,
the Commonwealth is required to make reasonable efforts
to promote reunification of parent and child. However, the
Commonwealth does not have an obligation to make such
efforts indefinitely. The Commonwealth has an interest
to a stable, safe, and healthy environment, and the two
interests must both be considered.
In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006) (citations
omitted).
is critical that the fact of incarceration and the practical limits it imposes on
the parent/child relationship
In re P.S.S.C. & P.D.S.C., 32 A.3d 1281, 1285 (Pa. Super. 2011).
Furthermore, this Court has held:
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ure to
and failure to support a child due to incarceration is not
conclusive on the issue of whether the parent has
responsibilities are not tolled during incarceration, and
therefore the court must inquire whether the parent
utilized those resources available while he or she was in
prison to continue a close relationship with the child.
Id. at 1286 (citations omitted).
The trial court found that DHS presented sufficient grounds to
2511:
§ 2511. Grounds for involuntary termination
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.
* * *
(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
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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.
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. § 2511(a)(1), (2), (5), (8), (b).
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
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In her first issue, Mother argues DHS failed to present sufficient
evidence in support of termination pursuant to any of the subsections of
never evidenced a settled purpose of relinquishing her parental rights to
Children. Id. at 12. She states that she completed most of her FSP goals,
and was actively completing the remaining goals, was compliant with her
probation, including random drug screens, was enrolled in a drug program,
and had re-engaged in mental health treatment. Id. She concedes,
however, that she had only been re-engaged in mental health treatment for
a few months, but claims that she needed to find suitable housing after
being released from prison before she could seek mental health treatment.
Id. at 13.
of Section 2511(a), we focus our analysis on whether the trial court properly
explained:
termination under subsection (a)(8) does not require
y to remedy the
conditions that initially caused placement, nor does it
require an evaluation of the availability or efficacy of
[DHS] services. Though the state is required to make
reasonable efforts to promote family stability and
preserve family unity we cannot require [DHS] to extend
services beyond what our legislature has deemed a
reasonable time after state intervention or require
Herculean efforts by [DHS] or other agencies after the goal
has changed to adoption. Nor, in the interests of the
child
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cannot be put on hold in the hope that the parent will
summon the ability to handle the responsibilities of
parenting.
In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003)
(citations omitted) (emphasis in original).
DHS
presented the testimony of Barbara Forest, DHS social worker. Ms. Forest
testified that D.S. and A.S. were adjudicated dependent in June and
September 2011, respectively.6 N.T., 11/14/13, at 11. Although Mother has
completed some of her FSP objectives, she did not have appropriate
housing, had not provided verification of employment, and was not engaged
in mental health treatment. Id. at 18, 21. Mother had also failed to
participate in random drug screens, and, when she did appear for drug
testing, she has had positive results. Id at 12-14. Ms. Forest testified that,
at the time of the hearing, she was still not comfortable recommending that
Mother have unsupervised visitation with Children. Id. at 20. Ms. Forest
recommends that Children be adopted by their [paternal grandmother] with
whom they have lived since 2011. Id. at 21. Paternal grandmother is
bonded with Children, meets their basic needs, and provides them with
stability. Id. at 21-22. Ms. Forest reiterated her recommendation that the
6
In fact, A.S. was adjudicated dependent on October 3, 2011.
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goal be changed to adoption because, even though Mother has completed
-
and Children need permanency. Id. at 23.
In the instant case, the trial court made the following findings:
completing her objectives for reunification with [Children].
were frequently unknown for long periods of time.
* * *
. . . D.S. and A.S. have been in foster care for
respectively for [sic] twenty-nine and twenty-six months.
The testimony established [Children] are in a stable
environment and adoption was in the best interest [sic] of
[Children].
* * *
The testimony established [M]other neglected to meet
the protective parental care needs for [Children].
Furthermore, testimony evidenced and confirmed that
[M]other has an extensive criminal history. Moreover,
caused instability in the care of [Children].
Furthermore, testimony established [M]other admitted
a history of drug usage and mental health issues. Lastly,
[M]other repeatedly failed to participate in court ordered
random drug screens.
Trial Ct. Op. at 4-5 (citations to the record omitted).
adequately supported by the record. The testimony and record evidence
establishes that Children have been in placement in excess of two years, and
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Mother has not advanced beyond having supervised visitation with Children.
her FSP objectives. However, it is undisputed that Mother has not met all of
the goals established by DHS, including consistently participating in mental
health, drug and alcohol treatment, and obtaining employment. On appeal,
Mother seeks to have this Court re-weigh the evidence. Our standard of
review, however, does not permit us to invade the credibility determinations
of the trial court and re-weigh the evidence, absent an abuse of discretion.
See In re S.P., 47 A.3d at 826.
As we find there is competent evidence in the record to support the
Section 2511(a)(8). See In re Adoption of R.J.S., 901 A.2d at 507; In re
Adoption of M.E.P., 802 A.2d at 1276.
determination that termination of her parental rights pursuant to Section
made a specific finding as to the nature of the relationship between her and
cision as to how the
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With regard to Section 2511(b), this court has stated:
Once the statutory requirement for involuntary
termination of parental rights has been established under
needs and welfare will be met by termination pursuant to
subsection (b). 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., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted). This
Court has explained that the focus in terminating parental rights under
Section 2511(a) is on the parent, but it is on the child pursuant to Section
2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008).
In analyzing the parent-child bond, the court is not required to order that an
expert perform a formal bonding evaluation. In re K.K.R.-S., 958 A.2d
529, 533 (Pa. Super. 2008).
a major aspect of the subsection 2511(b) best-interest
analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the
best interest of the child. The mere existence of an
emotional bond does not preclude the termination of
parental rights. See In re T.D., 949 A.2d 910 (Pa.
parental rights was affirmed where court balanced strong
child).
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (some citations omitted).
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timony
caseworker. Ms. Garcia testified that Children are bonded with Paternal
Grandmother. N.T. at 29-
visits with Children and that Mother struggles to discipline them in an
appropriate way. Id. at 31. She also suspected Mother was under the
influence of drugs or alcohol at one visit. Id. at 32. Ms. Garcia believes
a
connection with her, they have a strong bond with [Paternal Grandmother],
who has been providing for them. If she was no longer in their lives, they
Id. at 32-33. Ms. Garcia does not believe
it would cause Children irr
rights. Id. at 33-34.
address the effect that termination would have on Children. The trial court
concluded that termination of Moth
at 6. Specifically, the court found:
Testimony established [M]other
issues and drug abuse presented safety concerns for
[Children]. The testimony of the social worker revealed
[Children].
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. . . In the instant matter, the testimony established that
the child [sic] would not suffer any irreparable emotional
[Children] have bonded with their foster parent, [Paternal
Grandmother]. Testimony described the relationship
between [Children] and their foster parent as very close
and strong. Furthermore, testimony established their
foster parent provides longterm stability and permanency
for [Children].
Lastly in the instant matter, the social worker for [DHS]
testified credibly. Her testimony
history of drug abuse and failure to seek mental health
treatment was consistent.
* * *
. . . [T]he court finds that its ruling will not cause
[Children] to suffer irreparable harm and it is in the best
interest of the child [sic] as a result of testimony regarding
moral welfare, to terminate the parental rights.
Id. (citations omitted).
The trial court did not abuse its discretion in finding the lack of a
ben
welfare will be best served by terminating her parental rights pursuant to
Section 2511(b). Although the court found that Mother and Children love
each other, and that Mother attempted to maintain a relationship with
See In re
N.A.M., 33 A.2d at 103. Therefore, the trial court did not abuse its
d
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would be in the best interests of Children. See id.; In re Z.P., 994 A.2d at
1121; In re Adoption of M.E.P., 802 A.2d at 1276.
For all the foregoing reasons, we affirm the trial cou
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
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In the Interest of: A.J.S Appeal of: D.F.M.
Combined Opinion