J-S71033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.M.W.-D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.W., MOTHER :
:
:
:
:
: No. 877 EDA 2016
Appeal from the Order Entered February 17, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000653-2015, CP-51-DP-0001592-2013, FID:
51-FN-003132-2013
IN RE: S.M.D.-W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.W., MOTHER :
:
:
:
:
: No. 878 EDA 2016
Appeal from the Order Entered February 17, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000654-2015, CP-51-DP-0001590-2013, FID:
51-FN-003132-2013
IN RE: S.M.W.-D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.W., MOTHER :
:
:
:
:
: No. 879 EDA 2016
Appeal from the Order Entered February 17, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000655-2015, CP-51-DP-0001591-2013, FID:
51-FN-003132-2013
J-S71033-16
BEFORE: BOWES, PANELLA, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 18, 2016
M.W. (“Mother”) appeals from the orders granting the petitions filed by
the Philadelphia County Department of Human Services (“DHS”) to
terminate her parental rights to S.M.D., S.M.W., and S.M.W.-D.1
(collectively, “Children”), pursuant to the Adoption Act, 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b).2 We affirm.
On July 25, 2013, DHS received a general protective services (“GPS”)
report alleging that Mother physically abused Children and was abusing
prescription drugs. On July 26, 2013, DHS interviewed Children, who
confirmed that Mother physically abused them. That same day, DHS
obtained an order of protective custody (“OPC”) for Children and placed
Children in the care and custody of their paternal grandmother (“PGM”). A
shelter care hearing was held on July 29, 2013. At that hearing, the Master
lifted the OPC and ordered Children into the temporary care and custody of
DHS. On August 7, 2013, Children were adjudicated dependent and
returned to PGM’s care.
*
Former Justice specially assigned to the Superior Court.
1
The children were born in May of 2006, February of 2009, and December of
2009, respectively.
2
In a decree entered on April 27, 2016, the trial court terminated the
parental rights of Children’s purported father, J.J.J.D. (“Father”). Father has
not filed an appeal, nor is he a party to the present appeal.
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On September 22, 2015, DHS filed petitions for involuntary
termination of Mother’s parental rights to Children under Section 2511(a)(1),
(2), (5), (8), and (b). On February 17, 2016, the trial court held a hearing
on the petitions and entered the orders terminating Mother’s parental right
to Children that same day.
Mother timely filed these appeals with concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
trial court filed a responsive opinion. On April 13, 2016, this Court
consolidated the appeals.
Mother raises the following questions for this Court’s review:
1. Whether the trial court committed reversible error when
it involuntarily terminated [M]other’s parental rights where
such determination was not supported by clear and
convincing evidence under the Adoption Act, 23 Pa.C.S.[ ]
§ 2511 [(a)(1), (2), (5), and (8)] as [M]other made
progress towards working and meeting her [Family Service
Plan (“FSP”)] goals, namely staying drug free, working
towards obtaining housing, and working on parenting
skills, and other goals, during [C]hildren’s placement?
2. Whether the trial court committed reversible error when
it involuntarily terminated [M]other’s parental rights
without giving primary consideration to the effect that the
termination would have on the developmental, physical,
and emotional needs of [Children], as required by the
Adoption Act, 23 Pa.C.S.[ ] §2511 (b)?
Mother’s Brief at 4.
Mother first claims that the trial court erred in terminating her parental
rights when she made efforts and successfully completed many of her
objectives for reunification. Id. at 7. She contends that she showed a
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continuing interest in Children and bonded with them. Id. She notes that
she successfully completed the Achieving Reunification Center (“ARC”)
program, drug and alcohol treatment, and mental health treatment. Id.
Mother also asserts that she has demonstrated her commitment to obtaining
appropriate housing through maintaining employment, but her income has
hindered her ability to obtain housing. Id. at 8. She argues the trial court
erred in terminating her parental rights based on economic factors, which
DHS failed to prove could not be remedied. Id. No relief is due.
Our standard of review regarding orders terminating parental rights is
as follows:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law,
or insufficient evidentiary support for the trial court’s
decision, the decree must stand. Where a trial court has
granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision
the same deference that we would give to a jury verdict.
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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005) (citation omitted). “The
trial court is free to believe all, part, or none of the evidence presented and
is likewise free to make all credibility determinations and resolve conflicts in
the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation
omitted).
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In termination cases, 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 S.H., 879 A.2d at 806. The
clear and convincing standard requires evidence 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.” In
re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003). “However, if competent
evidence supports the trial court’s findings, we will affirm even if the record
could also support the opposite result.” In re Adoption of T.B.B., 835
A.2d 387, 394 (Pa. Super. 2003) (citation omitted).
The initial focus is on the conduct of the parent. In re L.M., 923 A.2d
505, 511 (Pa. Super. 2007). This Court need only agree with the trial
court’s decision as to any one subsection of Section 2511(a) to affirm the
court’s decision. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
Sections 2511(a)(2) provides, in relevant part:
(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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23 Pa.C.S. § 2511(a)(2).
This Court has stated:
In order to terminate parental rights pursuant to 23
Pa.C.S.[ ] § 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 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) (citation
omitted). “The grounds for termination 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, 337 (Pa. Super.
2002) (citations omitted). Parental duty requires that the parent act
affirmatively with a good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship to the best of his
or her ability, even in difficult circumstances. In re E.M., 908 A.2d 297,
306 (Pa. Super. 2006).
A court may reject a parent’s vow to cooperate after a long period of
uncooperativeness as untimely or disingenuous. In re A.L.D., 797 A.2d at
340. Moreover, “[a] child’s life simply cannot be put on hold in the hope
that [a parent] will summon the ability to handle the responsibilities of
parenting.” In re Adoption of M.E.P., 825 A.2d at 1276 (citations
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omitted). Rather, “a parent’s basic constitutional right to the custody and
rearing of his child is converted, upon the failure to fulfill his or her parental
duties, to the child’s right to have proper parenting and fulfillment of his or
her potential in a permanent, healthy, safe environment.” In re B., N.M.,
856 A.2d 847, 856 (Pa. Super. 2004) (citation omitted).
Instantly, the trial court found termination was warranted under
Section 2511(a)(2) for the following reasons:
[C]hildren . . . have been in placement care for
approximately thirty months.
* * *
[T]he [Community Umbrella Agency (“CUA”)] social worker
testified that [C]hildren were placed into the care and
custody of DHS due to several issues with [M]other.
[M]other did not have appropriate housing. Furthermore,
[M]other lacked the appropriate parenting skills and used
inappropriate discipline with [C]hildren. [M]other did not
rectify any of these issues. The social worker testified that
[M]other’s visits with [C]hildren were chaotic. Moreover,
[M]other had a hard time interacting with [C]hildren during
visits. The testimony indicated that [M]other “does not
have the skills” to control [C]hildren. Furthermore,
[C]hildren continued to be fearful to be alone with
[M]other. Lastly, [M]other’s visits with [C]hildren were
always supervised. [Mother] never progressed to
unsupervised visits.
Trial Ct. Op., 5/20/16, at 4 (unpaginated) (record citations omitted).
Our review of the record reveals the following. Heather Miller, the CUA
case management supervisor, testified she has been the supervisor assigned
to Mother and Children since April of 2015. N.T., 2/17/16, at 17. Miller
stated that Mother’s objectives were to obtain appropriate housing, to attend
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mental health treatment, to attend drug and alcohol treatment, to
participate in ARC services, to participate in domestic violence counseling,
and to maintain visits with Children. Id. at 18. Miller testified that Mother
completed her drug and alcohol treatment, mental health treatment, ARC
programs, and obtained employment. However, Mother did not have
appropriate housing. Id. Additionally, Mother did not complete a court-
ordered parenting capacity evaluation. Id.
Zoe Taddie, a CUA social work intern, testified that Mother’s visits with
Children were “pretty chaotic.” Id. at 31. Taddie expressed her concerns
about Mother’s ability to handle all three Children at once. Id. at 31-32.
Taddie testified that she had to ask Mother to get up and show Children she
has authority over them because Mother often sits on the couch and ignores
Children when they are acting out. Id. at 38. Mother also missed seven of
the last twenty scheduled visits with Children. Id. at 31.
Thus, the trial court’s findings of fact are supported by competent
evidence in the record. See In re M.G., 855 A.2d at 73-74. Mother’s
argument that the court terminated her rights based solely on economic
factors lacks merit. Rather, Mother essentially asks this Court to reweigh
the evidence considered by the trial court. Although Mother has made some
progress over approximately thirty months, Children’s lives cannot be put on
hold until she summons the ability to handle the responsibilities of
parenting. See In re Adoption of M.E.P., 825 A.2d at 1276. Accordingly,
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we discern no basis to disturb the trial court’s finding or its conclusion that
Mother’s conduct met the elements of Section 2511(a)(2).3
Mother next argues that the trial court failed to give “primary
consideration to the developmental, physical and emotional needs and
welfare of the child” or consider the bonds between her and Children.
Mother’s Brief at 9-10. Mother contends that “the record reflects that [she]
willingly made efforts to comply with DHS and CUA objectives in attempts to
make herself a better parent and reunify with her children because [she]
loves her children and has a bond with them.” Id. at 10-11. According to
Mother, “a bond or lack thereof was never proven by clear and convincing
evidence.” Id. at 10. No relief is due.
Section 2511(b) provides:
(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. . . .
23 Pa.C.S. § 2511(b).
The focus in terminating parental rights under Section 2511(b) is on
the children. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
3
Because, we affirm the court’s decision based on Section 2511(a)(2), we
need not address Mother’s arguments regarding the remaining subsections
of Section 2511(a). See In re B.L.W., supra.
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2008) (en banc). Pursuant to Section 2511(b), the trial court must consider
whether termination of parental rights would best serve the developmental,
physical, and emotional needs of the child. See In re C.M.S., 884 A.2d
1284, 1286-87 (Pa. Super. 2005). “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the needs and welfare
of the child.” Id. at 1287 (citation omitted). The court must also discern
the nature and status of the parent-child bond, with utmost attention to the
effect on the child of permanently severing that bond. See id.
With regard to Children’s bond with Mother, the trial court found:
[C]hildren do not share a primary bond with [M]other.
[C]hildren’s primary parent bond is with the kinship
parent, [PGM]. PGM is the primary care giver. She takes
care of the medical and educational needs of [C]hildren.
[C]hildren have stated that they want to live with PGM.
Furthermore, [C]hildren would not suffer emotional
damage if the parental rights of [M]other were terminated.
Lastly, it would be in the best interest of [C]hildren if their
goal were changed to adoption.
Trial Ct. Op., at 5 (unpaginated) (record citations omitted).
Instantly, Mother testified that “every time I leave the visit[,]” the two
younger children say they want to go with “mommy.” N.T. at 64. However,
Miller testified that Children are fearful of being alone with Mother and
S.M.D., in particular, requested on several occasions not to participate in
visits because of his fear. Id. at 19. Dwyone Sanders, a CUA case
manager, testified that Children stated they want to live with PGM and see
PGM as their primary caregiver. Id. at 47-48. Sanders concluded that
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Children will not suffer any permanent damage if Mother’s paternal rights
are terminated and that it was in Children’s best interest for Mother’s
parental rights to be terminated. Id. at 48. Taddie observed that
sometimes the two younger children will “give [Mother] a hug,” but at other
times, they “won’t really do anything” when they first see her at a visit. Id.
at 41. Taddie also concluded that Children have transitioned well into the
home of PGM. Id. at 42.
Thus, we find no support for Mother’s assertion that the trial court
failed to consider the requirements of Section 2511(b). We further conclude
competent evidence supports the trial court’s determinations that the bonds
between Mother and Children, if severed, would not be detrimental to
Children and that the termination of Mother’s parental rights would best
serve the needs and welfare of Children. Therefore, we do not disturb the
trial court’s conclusions under Section 2511(b). See In re M.G., 855 A.2d
at 73-74.
Having reviewed Appellant’s arguments, the trial court’s findings of
facts and conclusions of law, and the record, we affirm the orders
terminating Mother’s parental rights to Children on the basis of Section
2511(a)(2) and (b).
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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In Re: S.M.W-D., a Minor
Combined Opinion