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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: F.S.L.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: K.R., MOTHER : No. 239 EDA 2015
Appeal from the Decree December 9, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000305-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 09, 2015
Appellant, K.R. (“Mother”), appeals from the decree entered in the
Philadelphia County Court of Common Pleas, which granted the petition of
Appellee, Philadelphia County Department of Human Services (“DHS”), for
involuntary termination of Mother’s parental rights as to her minor child,
F.S.L.R. (“Child”). We affirm.
The relevant facts and procedural history of this appeal are as follows.
The minor mother was in the custody of DHS at the time of
[Child’s] birth.
[Mother] has been in three different mother/baby
placement foster homes due to her poor behavior.
On October 17, 2011, DHS held a Family Service Plan
(“FSP”) meeting. The FSP objectives for the mother were
as follows: 1) to ensure adequate supervision for [Child];
2) to ensure for [Child’s] safety and basic needs; and 3) to
attend the Achieving Independence Center (“AIC”) for
training on proper care for [Child]. [Mother] failed to
attend the FSP meeting.
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On July 23, 2012, [Mother] was placed by DHS at Guardian
Angel group home where she demonstrated significant
behavioral problems. [Mother] voluntarily left placement
with [Child] several times and refused to disclose her
whereabouts with [Child] during the absences. [Mother]
was verbally abusive and physically threatening toward
staff at her placement. Furthermore, [Mother] missed
medical appointments for [C]hild. Lastly, on September
11, 2012, during a room check, [M]other barricaded
herself and [Child] in her room with dressers and the staff
had to forcibly open the door.
On October 23, 2012, at a dependent hearing for [Child],
… [M]other testified that she would continue to be non-
compliant with the rules of the group home. [The court]
ordered that DHS obtain an Order of Protective Custody
(“OPC”) for [Child]. [Mother] abruptly left the courtroom,
ran to another floor in the Family Court building and broke
the glass of two door windows. [Mother] was restrained
by security and taken to the hospital where she was
treated for lacerations to her hands.
On October 23, 2012, DHS obtained an [OPC] for [Child]
and placed her at the Baring House.
A shelter care hearing was held on October 25, 2012….
[The court] ordered that [Child] be temporarily committed
to DHS.
On November 5, 2012, an adjudicatory hearing was held….
[Child] was adjudicated dependent and committed to DHS.
On December 20, 2012, DHS held an FSP meeting. The
FSP objectives for [M]other were: 1) to receive mental
health services, including anger management counseling;
2) to comply with the Achieving Reunification Center
(“ARC”); 3) to attend [F]amily [S]chool; and 4) to attend
medical appointments for [Child].
On March 7, 2014, DHS held an FSP meeting with the
following objectives for [Mother]: 1) to attend Family
School; 2) to complete an anger management program; 3)
to obtain suitable housing; 4) to participate in mental
health treatment; 5) to obtain employment; [and] 6) to
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participate in visits with [Child].
The matter was then listed on a regular basis before
Judges of the Philadelphia Court of Common Pleas―Family
Court Division―Juvenile Branch pursuant to…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.
(Trial Court Opinion, filed February 23, 2015, at 1-2).
On June 20, 2014, DHS filed a petition for involuntary termination of
Mother’s parental rights.1 The court conducted a termination hearing on
December 9, 2014. Immediately following the hearing, the court entered a
final decree terminating Mother’s parental rights to Child. On January 8,
2015, Mother timely filed a notice of appeal, which included a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i).
Mother raises four issues for our review:
DID THE [TRIAL] COURT ERR IN DETERMINING THAT THE
PETITIONER, DHS, MET ITS BURDEN OF PROVING, BY
CLEAR AND CONVINCING EVIDENCE, THE GROUNDS FOR
TERMINATION OF MOTHER’S [PARENTAL] RIGHTS
PURSUANT TO 23 PA.C.S.A. § 2511(a)(1) AND (b).
DID THE [TRIAL] COURT ERR IN DETERMINING THAT THE
PETITIONER, DHS, MET ITS BURDEN OF PROVING, BY
CLEAR AND CONVINCING EVIDENCE, THE GROUNDS FOR
TERMINATION OF MOTHER’S [PARENTAL] RIGHTS
PURSUANT TO 23 PA.C.S.A. § 2511(a)(2) AND (b).
DID THE [TRIAL] COURT ERR IN DETERMINING THAT THE
1
DHS also sought the involuntary termination of Father’s parental rights,
which the court granted in a decree entered December 9, 2014. Father is
not a party to the current appeal.
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PETITIONER, DHS, MET ITS BURDEN OF PROVING, BY
CLEAR AND CONVINCING EVIDENCE, THE GROUNDS FOR
TERMINATION OF MOTHER’S [PARENTAL] RIGHTS
PURSUANT TO 23 PA.C.S.A. § 2511(a)(5) AND (b).
DID THE [TRIAL] COURT ERR IN DETERMINING THAT THE
PETITIONER, DHS, MET ITS BURDEN OF PROVING, BY
CLEAR AND CONVINCING EVIDENCE, THE GROUNDS FOR
TERMINATION OF MOTHER’S [PARENTAL] RIGHTS
PURSUANT TO 23 PA.C.S.A. § 2511(a)(8) AND (b).
(Mother’s Brief at 5).
On appeal, Mother asserts she did not demonstrate a settled purpose
of relinquishing her parental claim to Child. Mother contends she devoted
countless hours to maintaining her parental rights by consistently visiting
Child, obtaining suitable housing and employment, participating in mental
health therapy sessions and anger management counseling, attending
Family School, and carrying a full-time college course load. Regarding her
mental health, Mother insists she attended therapy sessions at Life
Counseling Services on a weekly basis for three months, followed by less
frequent participation for another three months. Mother argues her
considerable efforts do not establish any refusal or failure to perform
parental duties. Mother further argues she remedied the factors that led to
DHS’s involvement, and the conditions necessitating Child’s placement no
longer exist. Additionally, Mother emphasizes the social worker’s testimony
that some bond exists between Mother and Child. Mother concludes the
court erroneously terminated her parental rights. We disagree.
Appellate review in termination of parental rights cases implicates the
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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 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
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opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
(Pa.Super. 2004).
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)).
DHS sought the involuntary termination of Mother’s parental rights 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.
* * *
(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
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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.―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); (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.
“A court may terminate parental rights under subsection 2511(a)(1)
when the parent demonstrates a settled purpose to relinquish parental claim
to a child or fails to perform parental duties for at least six months prior to
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the filing of the termination petition.” In re I.J., supra at 10.
Although it is the six months immediately preceding the
filing of the petition that is most critical to the analysis, the
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 bases 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 S.C.B., 990 A.2d 762, 771 (Pa.Super. 2010). “Parents are required to
make diligent efforts towards the reasonably prompt assumption of full
parental responsibilities.” In re A.L.D., 797 A.2d 326, 340 (Pa.Super.
2002) (quoting In re J.W., 578 A.2d 952, 959 (Pa.Super. 1990)). The
fundamental test in termination of parental rights under Section 2511(a)(2),
was stated in 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
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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 pursuant to 23 Pa.C.S.A. § 2511(a)(8),
the following factors must be demonstrated: (1) The child has been removed
from parental care for 12 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 best serve the child’s needs and welfare. In re C.P., 901 A.2d 516
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child.” Id.
at 520. “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.
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“It is universally agreed that the bond of parental affection is unique
and irreplaceable.” In re Diaz, 669 A.2d 372, 377 (Pa.Super. 1995).
When parents act in accordance with the natural bonds of
parental affection, preservation of the parent-child bond is
prima facie in the best interest of the child, and the state
has no justification to terminate that bond. On the other
hand, a court may properly terminate parental bonds
which exist in form but not in substance when
preservation of the parental bond would consign a child to
an indefinite, unhappy, and unstable future devoid of the
irreducible minimum parental care to which that child is
entitled.
Id. (quoting In re J.W., supra at 958) (emphasis in original).
“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 may properly 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 court 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.
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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 [the child’s] physical
and emotional needs.
In re B.,N.M., supra at 855 (internal citations and quotation marks
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…her potential in
a permanent, healthy, safe environment.” Id. at 856.
Instantly, Child has been in the continuous custody of DHS since
October 23, 2012. At the termination hearing, the court received testimony
from Megan Flanagan, the social worker assigned to the case. Ms. Flanagan
confirmed that Mother consistently visited with Child, but Mother would not
arrive on time for the visits. Specifically, Mother would arrive thirty to forty-
five minutes late for a two-hour visit. Ms. Flanagan also noted that Child
acted out after some of Mother’s visits.
Ms. Flanagan explained the circumstances surrounding Mother’s
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discharge from Family School:
[MS. FLANAGAN]: It was reported that [M]other…and
[C]hild had gotten everything out of Family School, it had
gone as far as it would go. Mother…also had irregular
attendance…and from my agency it was very difficult to be
taking the child from the Northeast to West Philadelphia in
that sometimes [M]other didn’t show up.
[DHS ATTORNEY]: So, in terms of being discharged from
Family School, you said that [M]other wasn’t going to get
anything else out of it, is that because she achieved all
that a person could achieve at Family School or because
she wasn’t holding up her end of the bargain at Family
School?
[MS. FLANAGAN]: She didn’t hold up her end of the
bargain at Family School.
[DHS ATTORNEY]: So there was progress for her to
make, it’s just that she wasn’t going to make it
(inaudible)?
[MS. FLANAGAN]: They even said to me that she
basically hit a wall, you know, she had met enough criteria
but it didn’t look like she had effort to move forward with
anything else.
(See N.T. Termination Hearing at 15; R.R. at 53a.)
Regarding mental health treatment, Ms. Flanagan reiterated that
Mother did not complete her FSP goal. Ms. Flanagan stated that the agency
had referred Mother for mental health evaluations, but Mother failed to
provide documentation memorializing her mental health treatment. On
cross-examination, Ms. Flanagan elaborated: “[Life Counseling Services] told
me that they had documentation that [Mother] had attended therapy, but
they did not discharge her from therapy, that she had stopped going.” (Id.
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at 20; 58a).
Significantly, Ms. Flanagan opined that Mother does not have a
parent/child bond with Child:
[DHS ATTORNEY]: What kind of bond would you say that
[Mother] has [with Child]?
[MS. FLANAGAN]: Friendship.
[DHS ATTORNEY]: And what’s your basis for saying that?
[MS. FLANAGAN]: When [Child] is upset, anything
happens to [Child], if she’s feeling tired, if she’s off, she
always cries out for her grandmother. She sometimes
asks where [M]om-[M]om [is], that’s what she calls her
paternal grandmother. It appears to me that is the
parental bond that she has at this time.
(Id. at 17; R.R. at 55a).
Mother also testified at the hearing, claiming she attended mental
health therapy sessions at Life Counseling Services in 2013. Mother said she
signed a release form to allow DHS and the court to access her mental
health records. Mother insisted she had completed two mental health
evaluations, and “both came back stating I didn’t need any medical
treatment, I didn’t need any further…therapy or mental health help.” (Id. at
37; R.R. at 75a). Additionally, Mother asserted she had ceased
communicating with her therapist, because Mother still owed money to Life
Counseling Services. In support of her testimony, Mother submitted a billing
ledger from Life Counseling Services, which indicated Life Counseling
Services had billed Mother for an “eval” and three “individual therapy”
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sessions occurring in August and September 2013. (See Mother’s Exhibit 2,
dated 4/18/14, at 1.)
Based upon the foregoing, the court issued the following credibility
determinations:
[T]he trial court found that the social worker for [DHS]
testified credibly. The testimony regarding [M]other’s
failure to provide mental health documentation to the
social worker was credible. The testimony regarding
Mother’s failure to act in accordance with her [FSP]
objectives was consistent. Lastly, the [c]ourt did not find
the testimony of [Mother] credible.
(See Trial Court Opinion at 6) (internal citations to the record omitted).
Consequently, the court concluded that DHS had satisfied its burden by
presenting clear and convincing evidence of the need to terminate Mother’s
parental rights to Child. The record supports the court’s conclusion that
termination of Mother’s parental rights was in Child’s best interests. See In
re Z.P., supra; In re B.L.L., supra. Accordingly, we affirm.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2015
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