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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.S. A/K/A K.A.R., IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
APPEAL OF: A.R., MOTHER No. 1615 EDA 2014
Appeal from the Decree entered April 29, 2014,
in the Court of Common Pleas of Philadelphia County, Family
Court, at No(s): CP-51-AP-0000012-2014, CP-51-DP-00011706-2012,
FID: 51-FN-001970-2012
BEFORE: PANELLA, OLSON, and PLATT*, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 10, 2014
A.R. (“Mother”), appeals from the decree entered on April 29, 2014,
that granted the petition filed by the Philadelphia County Department of
Human Services (“DHS”) to involuntarily terminate her parental rights to her
minor, male child, K.S., a/k/a K.A.R. (“Child”), born in March of 2011,
pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). We affirm.
The trial court ably and adequately set forth the factual background
and procedural history of this appeal, which we adopt herein. Child was
placed with his maternal grandmother as his foster parent on July 3, 2012.
N.T., 4/29/14, at 14. Child was adjudicated dependent on July 13, 2012.
On January 6, 2014, DHS filed a petition seeking the involuntarily
termination of Mother’s parental rights to Child, and a petition seeking a
* Retired Senior Judge assigned to Superior Court.
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change in Child’s permanency goal to adoption.1 On April 29, 2014, the trial
court held a hearing on the petition for the termination of parental rights and
goal change.
DHS presented the testimony of Linda McLean, the DHS social worker
assigned to the case between July of 2012 and February of 2014, N.T.,
4/29/14, at 15, and the testimony of Nessa Williams, an employee for the
service provider, Women’s Christian Alliance, from September of 2012 until
April of 2014. Id. at 25, 37. DHS also presented the testimony of Barbara
Bartley, the social worker assigned to the case on February 20, 2014. Id. at
48. After the conclusion of the hearing on April 29, 2014, the trial court
entered the decree terminating Mother’s parental rights.
1
The petition also sought the involuntary termination of the parental rights
of Child’s putative father, C.S., a/k/a C.A.S., to Child. At the hearing on the
petition, C.S. who was served with the petition, and who resided in
California, was present via telephone, and had appointed counsel present to
represent him. N.T., 4/29/14, at 5-6. C.S. adamantly disputed paternity,
and maintained that he did not know Mother and that she did not know him.
Id. Counsel for DHS conceded that the individual on the telephone was
unlikely to be the man that Mother had named as Child’s father. Id. at 6.
At the hearing, Mother also identified C.W. as the father of Child. Id. at 7-8.
The trial court discharged the petition against C.S. as Mother never identified
him as the father of Child, but permitted DHS to proceed against the
unknown father in the termination action. N.T., 4/29/14, at 8. As the trial
court reserved the issue of the termination of the unknown father’s parental
rights pending a petition by DHS, the trial court stated that it would later list
a termination/goal change hearing. Id. at 51. At the time that the certified
record was filed with this Court, the trial court had not granted the petition
with regard to father, and, accordingly, had not changed the permanency
goal to adoption, although DHS had changed its agency goal for Child to
adoption.
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On May 28, 2014, Mother timely filed a notice of appeal from the
decree, along with a concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
In her brief on appeal, Mother raises the following issue:
Did the [trial court] err in terminating Mother’s parental rights
and changing [Child’s] goal to adoption where Mother was
making efforts to meet her family service plan goals, including
completing parenting classes, attending three (3) months of
drug and alcohol treatment, and making official supervised and
informal visits with [Child], where [C]hild knew and was bonded
to Mother, and where there was not clear and convincing
evidence that [Child] would not be harmed by the termination of
Mother’s parental rights?
Mother’s Brief, at 5.2
In reviewing an appeal from the termination of parental rights, we
review the appeal in accordance with the following standard.
[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.; R.I.S., 36 A.3d 567, 572 (Pa.
2011) (plurality opinion). 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
2
We observe that Mother changed the language in her brief from that used
in her concise statement and combined the three issues in the concise
statement into one, but we find that she sufficiently preserved the issue in
her brief for our review. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue
not set forth in or suggested by an appellate brief’s statement of questions
involved and concise statement is deemed waived).
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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.
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).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[t]he standard of clear and convincing evidence is defined as
testimony 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.”
Id. quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
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2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, we will focus on section 2511(a)(2).
Section 2511 provides, in relevant part, as follows:
§ 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:
***
(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.
***
(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.
We have stated:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
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necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)
(citations omitted).
The trial court found clear and convincing evidence in the record of
Mother’s ongoing unwillingness to provide care or control for Child or to
perform any parental duties, and her failure to remedy the conditions that
brought Child into care. Trial Court Opinion, 6/27/14, at 10, 14. Further,
the trial court found that Mother would not be able to provide adequate care
for Child in the foreseeable future. Id. at 12-13. Moreover, the trial court
found that the termination of Mother’s parental rights would be in Child’s
best interests. Id. at 10, 12-14.
With regard to section 2511(a)(2), Mother contends that she visited
with Child at least sixteen times through both formal supervised visitation at
Women’s Christian Alliance and DHS’s office, and informal visits at the home
of Child’s maternal grandmother. Mother also asserted that she attended
three months of inpatient drug and alcohol treatment, satisfied her Family
Service Plan (“FSP”) goal of completing parenting classes, has been visiting
with Child, and is working on achieving other listed goals. Mother alleged
that she took these actions to remedy the causes of Child’s placement so
that Mother may eventually reunite with Child. She urges that the
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termination of her parental rights under section 2511(a)(2) is against the
weight of the evidence. See Mother’s Brief, at 9.
Our Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.”[].
Th[e Supreme] Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent,
can seldom be more difficult than when termination is
based upon parental incapacity. The legislature,
however, in enacting the 1970 Adoption Act, concluded
that a parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to
perform the duties.
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986) (quoting
In re: William L., 383 A.2d 1228, 1239 (Pa. 1978)).
In re Adoption of S.P., 47 A.3d at 827.
After a careful review of the record, we find no merit to Mother’s
argument. This Court has stated that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A
parent’s vow to cooperate, after a long period of uncooperativeness
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regarding the necessity or availability of services, may properly be rejected
as untimely or disingenuous. Id. at 340. We adopt the trial court’s
discussion, analysis, and disposition of section 2511(a)(2) as this Court’s
own. See Trial Court Opinion, at 10-12 (finding that while Mother complied
with parenting objectives of her FSP, she failed to meet the housing, drug
and alcohol treatment, and visitation objectives of her plan). We find that
there was clear and convincing, competent evidence that Mother did not
remedy the conditions that caused Child to come into care, and has been,
and continues to be, unable to provide proper care for Child, warranting the
involuntary termination of Mother’s parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2). See In re Adoption of S.P., 47 A.3d at 826-27.
As we have determined that the requirements of section 2511(a) have
been satisfied, we now proceed to review whether the requirements of
subsection (b) have been met. See In re Adoption of C.L.G., 956 A.2d
999, 1009 (Pa. Super. 2008) (en banc). This Court has stated 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). Id. at 1008.
With regard to section 2511(b), Mother argues that the trial court
improperly concluded that Child would not suffer irreparable harm if Mother’s
parental rights were terminated, based on the testimony of Ms. McLean and
Ms. Williams relating to Child’s bond with his foster parent, his maternal
grandmother. Id. at 12. Mother contends that it is inappropriate to draw a
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conclusion that Child would not suffer irreparable harm if Mother’s parental
rights were terminated simply from the fact that she is incapable of
parenting Child. Id. at 13.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows.
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
1993)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (2013).
As to the bond analysis, we have stated that, in conducting a bonding
analysis, the court is not required to use expert testimony, but may rely on
the testimony of social workers and caseworkers. In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010). This Court has also observed that no bond
worth preserving is formed between a child and a natural parent where the
child has been in foster care for most of the child’s life, and the resulting
bond with the natural parent is attenuated. In re K.Z.S., 946 A.2d 753,
764 (Pa. Super. 2008).
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Here, Mother failed to “exhibit [the] bilateral relationship which
emanates from the parent[’s] willingness to learn appropriate parenting. . .
.” In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super. 2008). The trial court
found, from the testimony of Ms. McLean (of DHS), that Mother, because of
her absence from Child’s life for the past two years and Child’s placement
with his maternal grandmother as his foster parent, did not put herself in a
position to develop a real bond with Child. Trial Court Opinion, 6/27/14, at
12; see In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).
Additionally, as part of its bonding analysis, the trial court
appropriately examined Child’s relationship with his foster parent. While Ms.
McLean acknowledged on cross-examination by Mother’s counsel that Child
does recognize Mother, and Ms. Williams stated on direct examination by
DHS’s counsel and on cross-examination by Mother’s counsel that there is a
bond between Child and Mother, our Supreme Court has held that not all
bonds are worth maintaining. N.T., 4/29/14, at 34, 38, 48; see In re:
T.S.M., 71 A.3d at 267-268 (stating that existence of a bond attachment of
a child to a parent will not necessarily result in the denial of a termination
petition, and the court must consider whether the child has a bond with the
foster parents). In rendering its decision, the trial court considered that
Child’s maternal grandmother is a pre-adoptive foster parent. N.T.,
4/29/14, at 23, 41, 51. After considering Child’s relationship with Mother
and his foster parent, the trial court concluded that the termination of
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Mother’s parental rights would not have a detrimental effect on Child, and
would be in his best interest. Trial Court Opinion, 6/27/14, at 12-14.
Since there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Child’s needs and
welfare, and the absence of any bond with Mother that, if severed, would
cause Child to suffer irreparable harm, we conclude that the trial court did
not abuse its discretion in finding competent evidence to support the
termination of Mother’s parental rights under section 2511(b). See In re
Adoption of S.P., 47 A.3d at 826-27. Accordingly, we affirm the decree
terminating Mother’s parental rights to Child for the reasons set forth in the
trial court’s opinion filed on June 27, 2014. As we have adopted the trial
court’s section 2511 (a)(2) discussion, analysis and disposition as our own,
the parties are directed to attach a copy of the trial court’s June 27, 2014
opinion to any future filings made in this Court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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