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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.C., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.C., MOTHER,
Appellant No. 3440 EDA 2014
Appeal from the Decree Entered October 28, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000278-2014
BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 07, 2015
J.C. (“Mother”) appeals the decree entered on October 28, 2014,
which granted the petition filed by the Philadelphia County Department of
Human Services (“DHS” or the “Agency”), seeking to involuntarily terminate
Mother’s parental rights to her daughter, A.C. a/k/a A.C.C. (“Child”), born in
May of 2005. The decree terminated Mother’s parental rights pursuant to
the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and
changed Child’s permanency goal to adoption pursuant to the Juvenile Act,
42 Pa.C.S. § 6351(f).1 We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
On June 17, 2014, the trial court entered decrees involuntarily terminating
the parental rights of Child’s purported father, S.J.G. a/k/a S.G., as well as
any unknown father. Neither S.J.G. nor any unknown father filed a notice of
(Footnote Continued Next Page)
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The trial court accurately set forth the factual background and
procedural history of this appeal in its opinion entered on December 30,
2014, as follows:
On August 29, 2009, the Department of Human Services (DHS)
received and substantiated a General Protective Services Report
(GPS) regarding the lack of supervision of the child. The
substantiated facts were that [Child], four years old, was found
outside the family home alone. The report also stated the
Philadelphia Police officers entered the family home where
[Child] lived and there was no appropriate supervision. The child
was home alone.
Subsequently, [Child] was placed in the care of her maternal
grandmother. Pursuant to a family agreement, [Child] would
live in Florida with her maternal grandmother [(“MGM”)].
Alternatively, DHS prepared a safety plan, in the event [Child]
remained in Philadelphia[.2]
On May 24, 2011, [MGM] filed for primary physical and legal
custody of [Child] through the Domestic Relations Branch of
Family Court.
On February 5, 2013, [Mother] was arrested and charged with
possession of a controlled substance by a person not registered
under the Controlled Substance Act. (CSA).
On February 7, 2013, [Mother] was released from incarceration.
Mother was subsequently re-arrested on or about February 28,
_______________________
(Footnote Continued)
appeal from the decree terminating his parental rights, and he is not a party
to the instant appeal.
2
Testimony at the October 28, 2014 hearing revealed that Child was
removed from Mother’s care in 2009 and placed with the maternal
grandparents but was subsequently returned to Mother. Child was removed
from Mother in 2010 and placed with maternal grandparents but was again
returned to Mother. Child was removed for the third time in 2013 and has
been living with the maternal grandparents since that time. N.T., 10/28/14,
at 24–25.
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2013[,] after The Honorable Dawn A. Segal issued a bench
warrant for her arrest.
On February 27, 2013, DHS received an Emergency General
Protective Services (EGPS) report alleging that [M]other had
been arrested and was incarcerated. [Child] was diagnosed with
Attention Deficit Hyperactivity Disorder (ADHD), Oppositional
Defiant Disorder (ODD), and a mood disorder. Additionally she
had a disorder, Pica. Pica is a disorder which is characterized by
an appetite for largely non-nutritive substances such as clay,
dirt, or sand. The report also alleged that on February 27, 2013,
the school requested that maternal grandparents pick up [Child]
from school early due to [Child’s] unmanageable behavior.
[Child] had eaten paper and pencils in school that day and licked
her desk. These behaviors were caused due to the non-
administration of her prescription medications. [Child’s] mental
health therapist at The Tree of Life subsequently prescribed the
appropriate medications.
On April 15, 2013, In-Home Protective Services (IHPS) were
implemented through Wordsworth Academy to assist [M]other
with enrolling in parenting education classes, mental health
treatment, and drug/alcohol treatment. Furthermore, IHPS
would ensure that the family was adhering to [Child]’s mental
health treatment and medication management. Lastly, IHPS
would monitor [Child]’s school attendance.
In May of 2013, [M]other was found non-compliant with IHPS.
Moreover, [MGM] evicted [M]other from [MGM’s] home due to
[M]other’s continued drug/alcohol abuse. On May 8, 2013,
[M]other was found in the street by paramedics, semi-conscious
and incoherent.
She was transported to Episcopal Hospital and admitted for
inpatient mental health and drug/alcohol treatment. The same
evening [M]other discharged herself from Episcopal Hospital
against medical advice. Subsequently, her whereabouts became
unknown. DHS advised [MGM] to file for custody.
On June 7, 2013, DHS filed a dependency petition on behalf of
[Child,] who continued to reside with her grandparents.
Maternal grandparent[s] requested kinship care assistance.
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On July 8, 2013, a Family Service Plan (FSP) meeting was held.
The parental objectives were the following: (1) parents to be
referred to The Clinical Evaluation Unit (CEU), (2) parents to
complete the Achieving Reunification Center program (ARC), and
(3) parents to attend visits with the child. The parents did not
attend the FSP meeting.
On July 9, 2013, The Honorable Jonathan Q. Irvine adjudicated
[Child] dependent and committed her to DHS custody. The
Court specifically ordered [M]other to the Clinical Evaluation Unit
(CEU) for a forthwith drug screen/evaluation, dual diagnosis and
monitoring. The Court further ordered [M]other to comply with
the CEU recommendations. The parents did not attend the
hearing.
On September 9, 2013, [M]other tested positive for marijuana
and PCP at the CEU.
[Child]’s initial permanency review hearing was held on October
31, 2013, before Juvenile Master Tammy Langenberg. The
[c]ourt ordered [Child] to remain as committed. The [c]ourt
received a report of non-compliance from the CEU.
Subsequently, [M]other was again referred to the CEU for a
forthwith drug screen and assessment, dual diagnosis and
monitoring. Lastly, [M]other was ordered to participate in
random drug screens including alcohol.
On October 31, 2013, [M]other tested positive for PCP again at
the CEU.
On December 16, 2013, DHS referred [M]other to ARC to assist
with the following FSP objectives: a mental health evaluation,
housing, financial counseling, employment services, drug/alcohol
treatment, job training and Women’s Empowerment Group.
On January 6, 2014, DHS learned that [M]other was
noncompliant with ARC’s outreach efforts on the following dates:
December 20, 2013, December 23, 2013, December 24, 2013,
December 27, 2013 and January 6, 2014. Due to [M]other’s
noncompliance[,] ARC closed/stopped its outreach efforts to her
on January 6, 2014.
The matter was then listed on a regular basis before Judges of
the Philadelphia Court of Common Pleas - Family Court Division -
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Juvenile Branch pursuant to Section 6351 of the Juvenile Act, 42
Pa.C.S.A. §6351[,] and evaluated for the purpose of determining
or reviewing the permanency plan of [Child] with the goal of
reunification of the family.
In subsequent hearings, the DRO’s reflect the [c]ourt’s review
and disposition as a result of evidence presented addressing the
lack of compliance with drug/alcohol and housing[.]
Trial Court Opinion, 12/30/14, at unnumbered 1–3.
On May 30, 2014, DHS filed a petition to involuntarily terminate the
parental rights of Mother, Father, and any unknown father to Child and to
change Child’s permanency goal to adoption. On June 17, 2014, the trial
court held a bifurcated hearing on the petition and entered its decrees
involuntarily terminating the parental rights of Father and any unknown
father.
On October 28, 2014, the trial court held an evidentiary hearing on the
petitions for involuntary termination and goal change with regard to Mother.
DHS presented the testimony of Cheryl Barr, a DHS social worker assigned
to the family. N.T., 10/28/14, at 6–7. Mother testified on her own behalf.
Id. at 35. DHS presented an exhibit that was admitted into evidence and
demonstrated that Child had been in DHS’s care and custody since June 18,
2013. Id. at 9; DHS Exhibit 1. On October 28, 2014, the trial court entered
the decree involuntarily terminating Mother’s parental rights. On November
25, 2014, Mother filed a timely notice of appeal along with a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
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On appeal, Mother raises the following two issues:
1. Did the Trial Court err in terminating the Appellant’s parental
rights under [23] Pa.C.S. Section 2511?
2. Did the Trial Court err in finding that termination of parental
rights best served [Child’s] developmental, physical and
emotional needs under sub-section 2511(b)?
Mother’s Brief at vi.3
Mother asserts that the trial court erred in terminating her parental
rights because DHS failed to present clear and convincing evidence
supporting termination. Mother’s Brief at ix. Mother contends that she was
compliant with her FSP objectives in that she had housing and was receiving
drug and mental health treatment. Id. Mother also claims that her most
recent positive drug screen was in June of 2014, and thereafter, she tested
negative. Id. Accordingly, Mother argues that she had resolved all issues
that had given rise to Child’s removal from her care and placement. Id.
____________________________________________
3
In the discussion portion of her appellate brief, Mother purports to raise a
third issue, i.e., whether the trial court erred in granting a goal change to
adoption under section 6351 of the Juvenile Act. Mother’s Brief at ix, 6–7.
In her statement of questions involved in her brief, Mother did not raise the
issue of the change of Child’s permanency goal to adoption. “No question
will be considered unless it is stated in the statement of questions involved
or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Therefore, she has
waived any challenge to the goal change to adoption. 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); see also In re G.D., 61 A.3d 1031, 1036 n.3 (Pa. Super. 2013)
(“[W]e will not ordinarily consider any issue if it has not been set forth in or
suggested by an appellate brief’s statement of questions involved, Pa.R.A.P.
2116(a) . . . .”).
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In reviewing an appeal from the termination of parental rights, we
employ 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.,
608 Pa. 9, 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.; In re
R.I.S., [614 Pa. 275,] 36 A.3d [567,] 572 (Pa. 2011) (plurality).
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 Samuel-Bassett v. Kia
Motors America, Inc., [613 Pa. 371], 455], 34 A.3d 1, 51
([Pa.] 2011); Christianson v. Ely, 575 Pa. 647, 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, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).
In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).
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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). We
have explained that the “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)). Moreover, this Court may affirm the trial
court’s decision regarding the 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).
The trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). We focus on section 2511(a)(2)
and (b), which provide 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.
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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. § 2511 (a)(2), (b).
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence 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). 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.D., 93 A.3d 888, 895 (Pa. Super. 2014) (citing In
re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002)).
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Our Supreme Court set forth our inquiry under section 2511(a)(2) as
follows:
[Section] 2511(a)(2) provides statutory grounds for termination
of parental rights where it is demonstrated by clear and
convincing evidence that “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.” If and only if grounds for
termination are established under subsection (a), does a court
consider “the developmental, physical and emotional needs and
welfare of the child” under § 2511(b).
This 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., 511 Pa. 590, 515 A.2d 883, 891 (Pa.
1986) (quoting In re: William L., 477 Pa. 322, 383 A.2d 1228,
1239 (Pa. 1978)).
Adoption of S.P., 47 A.3d at 827.
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 at 337. A parent’s vow to cooperate, after a long
period of uncooperativeness regarding the necessity or availability of
services, may properly be rejected as untimely or disingenuous. Id. at 340.
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The trial court explained its decision to terminate Mother’s parental
rights under section 2511(a)(2) as follows:
It is clear from the record that for a period of six (6) months
leading up to the filing of the Petition for Involuntary
Termination, [M]other failed to perform any parental duties for
[Child]. The court found by clear and convincing evidence that
[M]other failed to perform her parental duties. The testimony of
the social worker indicated concern regarding [M]other’s ability
to maintain sobriety[.] (N.T. 10/28/14, pg. 13-14). [M]other
continued to test positive for drugs. The last positive drug
[screen] was in June of 2014. (N.T. 10/28/14, pg. 10-14, 25)[.]
Furthermore, [M]other failed to comply with the CEU’s request
for random drug/alcohol screens. (N.T. 10/28/14, pg. 13-14)[.]
Lastly, [M]other failed to maintain contact with DHS personnel.
(N.T. 10/28/14, pg. 14-15)[.]
***
In the instant matter, [C]hild has been in care for over sixteen
months. (N.T. 10/28/14, pgs. 51-52)[.] The testimony
established that [M]other failed to inquire about the
developmental growth and needs of [Child.] (N.T. 10/28/14, pg.
27)[.] Additionally, [M]other failed to respond to outreach by
the social worker[.] (N.T. 10/28/14, pg. 30-32)[.] Furthermore,
the testimony established that [C]hild is in a stable environment
and adoption was in the best interest of [C]hild. (N.T. 10/28/14,
pgs. 23)[.] Moreover, [M]other has not been compliant with her
drug/alcohol treatment. (N.T. 10/28/14, pgs. 43, 48)[.]
[M]other did not complete parenting classes. (N.T. 10/15/14,
pg. 26-27)[.] Lastly, [M]other has not visited with [Child] since
January 2014. (N.T. 10/15/14, pg. 26-27)[.]
***
The testimony established that [M]other did not have
appropriate parenting skills. (N.T. 10/28/14, pg. 54)[.] [M]other
failed to monitor [Child]’s medication management. (N.T.
10/28/14, pg. 8)[.] Furthermore, [M]other was unavailable
during a medical emergency for [Child.] (N.T. 10/28/14, pg. 8-
9)[.] Moreover, [M]other failed to comply with mental health
treatment[.] (N.T. 10/28/14, pg. 55)[.] Lastly, [M]other does
not have appropriate housing. (N.T. 10/28/14, pg. 54)[.]
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Trial Court Opinion, 12/30/14, at unnumbered 4–5.
There is ample, competent, clear, and convincing evidence in the
record to support the trial court’s determination that Mother has not
demonstrated any ability to remedy the circumstances which led to Child’s
placement, nor is there any indication that she could remedy such
circumstances in the foreseeable future, even with continued services in
place. After a careful review of the record, we conclude that the trial court
aptly evaluated the evidence against the requirements of 23 Pa.C.S. §
2511(a)(2). We will not impose our own credibility determinations and re-
weigh the evidence. We must defer to the trial judge’s determination, 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.
Adoption of S.P., 47 A.3d at 826-27.
Having determined that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of section 2511(b)
are satisfied. 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
under section 2511(b). Id. at 1008.
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
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Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “intangibles 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 (Pa. 2013).
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 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).
The trial court explained its decision to terminate Mother’s parental
rights under section 2511(b) as follows:
In the instant matter, the testimony established that [C]hild
would not suffer any irreparable emotional harm if [M]other’s
parental rights were terminated. (N.T. 10/28/14, pg. 22)[.]
[C]hild has bonded with her grandparents. (N.T. 10/28/14, pg.
28, [22–23).] Furthermore, [Child’s] grandparents are her
primary caregivers who provide for her daily needs. (N.T.
10/28/14 pg. 22)[.] Additionally, the testimony described the
relationship between [C]hild and her grandparents as very
strong and loving. (N.T. 10/28/14, pgs. 22-23)[.] Lastly, the
social worker testified that adoption is in [Child’s] best interest.
(N.T. 10/28/14 pg. 23)[.]
As explained in initial Order, the [t]rial [c]ourt found by clear
and convincing evidence that the Department of Human Services
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met [its] statutory burden pursuant to 23 Pa.C.S.A. §2511(a)(1)
(2) (5) and (8) and §2511(b)[,] and that it was in the best
interest of [C]hild to change the goal to adoption for
permanency. (N.T. 10/28/14, pgs. 54-55)[.] The social worker
testified credibly. (N.T. 10/28/14, pg.55)[.]
Trial Court Opinion, 12/30/14, at unnumbered 6.
There is ample, competent, clear, and convincing evidence in the
record to support the trial court’s finding that Child’s maternal grandparents
meet all of her needs and welfare, and that Child, who has been in
placement since June of 2013, has a strong bond with them. N.T.,
10/28/14, at 18, 22–23. The competent evidence of record supports the
trial court’s determination that, although Child has some relationship with
Mother, Child would not suffer any harm from the termination of Mother’s
parental rights. Id. at 18-20, 22-23. The competent evidence in the record
also supports the trial court’s finding that the termination of Mother’s
parental rights would serve Child’s best interests. Id. at 22-23. Thus, we
will not disturb the trial court’s decision. Adoption of S.P., 47 A.3d at 826–
827.
Accordingly, we affirm the trial court’s decree terminating Mother’s
parental rights to Child pursuant to section 2511(a)(2) and (b) of the
Adoption Act, and changing Child’s permanency goal to adoption pursuant to
section 6351 of the Juvenile Act.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/2015
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In The Interest of: A.C., a Minor
Combined Opinion