J-S86045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.N.S., : IN THE SUPERIOR COURT OF
S.N.S., AND T.I.W.S. : PENNSYLVANIA
:
:
:
APPEAL OF: L.R.W., NATURAL :
MOTHER : No. 1260 WDA 2016
Appeal from the Order Dated July 19, 2016
In the Court of Common Pleas of Cambria County
Orphans’ Court at No(s): 2016-8 IVT, 2016-9 IVT, 2016-10 IVT
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 21, 2016
Appellant, L.R.W. (“Mother”), appeals from the order entered in the
Cambria County Court of Common Pleas, which involuntarily terminated her
parental rights to minor children, A.N.S., S.N.S., and T.I.W.S. (“Children”).
We affirm.
The trial court set forth the relevant facts and procedural history of
this case as follows:
1. On January 6, 2016, [CYS] filed a Petition to
Involuntarily Terminate the Parental Rights of [C.S.
(“Father”)], then age 51, and [Mother], then age 34,
biological parents of [Children].
* * *
4. Hearings were conducted on May 13, 2016, and
June 17, 2016. Both parents were present at the
hearings[.]
_____________________________
*Former Justice specially assigned to the Superior Court.
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5. [A.N.S.] and [S.N.S.] had been adjudicated
dependent in July 2006 and placed in the care of CYS.
However, they were returned to [Mother] in August of
2008 and services [were] terminated to the family.
6. CYS returned in August of 2013 due to reports
between May 2013 and July 2013 that [Mother] did not
have the ability to supervise [Children] and [F]ather was
incarcerated. The two youngest children, [S.N.S.] and
[T.I.W.S.], then ages [7] and 2, were on the street alone,
and during the past year [A.N.S.] and [S.N.S.] were
absent or late for school.[1]
7. After the initial adjudication hearing on August
21, 2013, the Juvenile Court provided a list of actions for
[Mother] to take, including successfully completing
parenting classes, supervision of [Children], financial
responsibility classes, and making sure that the two [older]
children attended school on a regular basis. …
8. Permanency Review Hearings were held on
December 30, 2013 and January 29, 2014. The Juvenile
Court found [Mother] to be only minimally compliant with
the Permanency Plan and [F]ather had no compliance with
the plan. [T.I.W.S.] was removed and placed with a
paternal aunt, along with his sister [A.N.S.], who was
uncooperative and defiant. [S.N.S.] remained with
[M]other. [Father] remained incarcerated.
9. At the Permanency Review Hearing held on June
2, 2014, the Juvenile Court again found [Mother]
minimally compliant and [Father] had no compliance.
Father was still incarcerated and determined not to be a
placement option.
10. At a Permanency Review Hearing held on August
13, 2014, [A.N.S.] and [T.I.W.S.] were removed from the
home of the aunt and [S.N.S.] was removed from
[Mother]. The Juvenile Court also made a finding that
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1
CYS’ involvement with the family was also based on reports of household
issues and financial instability.
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neither parent would be a placement option. The Juvenile
Court seemed frustrated that despite years of providing
various services, [Mother] had not been able to alleviate
the circumstances which led to CYS involvement for the
past nine years.
11. Subsequent Permanency Review Hearings were
held on June 10, 2015; November 25, 2015; and April 20,
2016, with consistent findings of minimal or no compliance
by [Mother] and absolutely no compliance by [Father] who
had been in and out of jail.
12. Dennis Kashurba, a licensed psychologist,
evaluated [Mother] on two occasions resulting in reports
dated July 21, 2006, and March 6, 2008. …
* * *
14. [Mother] failed to show for a January 8, 2014
evaluation.
(Trial Court Order, filed July 19, 2016, at 1-5) (unpaginated). On January 6,
2016, CYS filed a petition for involuntary termination of Mother’s and
Father’s parental rights to Children. Following two hearings on the petition,
the court terminated the parental rights of Mother and Father to Children on
July 19, 2016. On August 10, 2016, Mother timely filed a notice of appeal
and a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i).
Mother raises the following issue for our review:
WHETHER THE COURT EITHER ABUSED ITS DISCRETION
OR COMMITTED AN ERROR OF LAW WHEN IT GRANTED
THE PETITION FOR INVOLUNTARY TERMINATION OF
PARENTAL RIGHTS, THEREBY TERMINATING THE
PARENTAL RIGHTS OF [MOTHER] TO [CHILDREN?]
(Mother’s Brief at 2).
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Mother argues she did not demonstrate a settled purpose of
relinquishing her parental rights to Children. Mother asserts she did not
refuse or fail to perform parental duties. Mother contends the evidence
showed her interest in Children and her active steps to bring them back into
her custody. Mother claims she has long-term stable housing and has
obtained available public assistance. Mother avers her testimony established
her home was clean, organized, and suitable for Children. Mother maintains
she also established her utilities were on and she was making acceptable
payments to the service providers. Mother asserts she completed parenting
classes and attended all scheduled visits with Children. Mother submits CYS
relied on old records and outdated information. Mother claims she is being
punished for her back condition, which temporarily hindered her ability to
parent Children. Mother contends no evidence demonstrated the continued
existence of the conditions which led to the removal of Children from her
custody. Mother argues the trial court found, contrary to the record, that no
bond existed between Mother and T.I.W.S. Mother avers CYS presented no
evidence that Mother’s bonds with Children were unhealthy, or that Children
had positive bonds with their foster parents. Mother concedes Children have
done well in foster care but insists Children would benefit equally, if not
more, by returning home to Mother. Mother concludes the court abused its
discretion when it terminated her parental rights to Children. We disagree.
The standard and scope of review applicable in termination of parental
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rights cases are 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 it 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.
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.
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.
We may uphold a termination decision if any proper basis
exists for the result reached. If the trial court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even though the record could support an
opposite result.
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) (internal citations omitted).
CYS 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
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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 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
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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., 994 A.2d 1108, 1117 (Pa.Super. 2010).
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.
“[T]he mere existence of a bond or attachment of a child to a parent will not
necessarily result in the denial of a termination petition.” In re T.S.M., 620
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Pa. 602, 629, 71 A.3d 251, 267 (2013). “[I]t is an immutable psychological
truth that even the most abused of children will often harbor some positive
emotion towards the abusive parent.” Id. See also In re K.Z.S., 946 A.2d
753 (Pa.Super. 2008) (affirming trial court’s decision to terminate mother’s
parental rights, where trial court found placing child with mother would have
negative impact on child and would not be in child’s best interest; no
evidence suggested mother had bond with child comparable to child’s strong
bond with foster parent, or that terminating mother’s parental rights would
sever existing beneficial relationship or cause irreparable harm to child).
“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).
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 himself 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., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (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, the trial court reasoned as follows:
After review of the CYS records of the Independent Family
Services [(“IFS”)] monthly reports, participation in
monthly case review with [IFS] and in consultation with
the CYS caseworker, [Dr.] Kashurba concluded that:
The total information available at the present time
suggests quite convincingly that [Mother’s] ability to
independently implement parenting strategies that
have been provided to her over the past several
years’ time has not improved to a degree that would
suggest that she can appropriately independently
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parent any of her children on an ongoing basis. …
Monthly consultation during the course of [Mother’s]
[IFS] treatment indicate[s] that she continues to
“parent from the couch” and that she is able to
explain what techniques she should employ with
[Children] but continues to not be able to implement
these on an independent basis. … The escalating
behavioral challenges of the older children also
speaks for itself in that inadequate supervision and
discipline on [Mother’s] part places these children at
risk of harm due to their risky behaviors.
* * *
A caseworker for [IFS], which began providing services to
[Mother], summarizes her experience with [Mother] as
follows:
In summary, while it appeared as though [Mother]
was initially interested in participating in the IFS
Home Management Program, she became
uninterested in participating. [Mother’s] general lack
of concern for her home and [C]hildren and her lack
of interest to improve her cleaning skills, financial
skills and eliminate safety issues within the home
made the home unsafe for [Children]. IFS Home
Management Services were terminated when
[Children] were removed from the home on August
13, 2014.…
[B]everly A. Ragan, a CASA volunteer for 12 years, …in her
June 2, 2015 report to the Juvenile Court dealing with
[Children] and two of their siblings not involved in the
present case, stated as follows:
This sibling group was removed in 2006 returned
home only to come back into the system in 2013.
These children need stability in their lives. They
have been on an emotional roller coaster, which has
manifested itself with many disruptive behaviors.
* * *
The [c]ourt next considers the bond, if any, which each of
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the parents have with [Children]. … As regards [Mother],
there is a bond between her and each of her two older
children, [A.N.S.] and [S.N.S.] None exists with [T.I.W.S.]
[I]n summary, [Mother and Father] have demonstrated an
inability to perform their parental duties and they lack the
motivation of performing these duties within a reasonable
period of time.
[I]n terminating the parental rights of [Mother and
Father], the [c]ourt finds that such termination is in the
best interests of [Children] and that termination will best
meet the developmental, physical, and emotional needs
and welfare of [Children].
* * *
Each of the children deserves to have a better life.
[S.N.S.] no longer exhibits significant behavioral issues or
excessive school absences. [S.N.S.] is often on the Honor
Roll at school, and she is active in multiple enrichment
activities. [A.N.S.] no longer exhibits behavioral issues or
excessive school absences. [A.N.S.] is now involved in a
prestigious higher achiever program through her school
and she is active in multiple enrichment activities.
[T.I.W.S.] has flourished in his kinship foster home. He no
longer exhibits significant behavioral issues and has
developed a strong bond with his kinship foster family.
In summary, all of these children are doing well in foster
care.
[Ms.] Ragan testified at the May 13, 2016 hearing
concerning [Mother] and [Children] as follows:
And I know this and I know [Mother’s] background
and I know that she has got some unresolved issues
of herself and that’s from years of working with her
and understanding her background. But her children
are being destroyed by her inability in not seeking
help sooner for herself.
(Trial Court Order at 5-9) (unpaginated). We accept the court’s analysis.
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CYS has been involved with Mother repeatedly over the last decade.
The IFS worker testified that Mother was unable to stabilize financially or
maintain the household, despite the assistance she received from IFS in the
year after Children were adjudicated dependent. Mother exhausted every
county social agency for financial assistance but still failed to meet monthly
living expenses. Mother expressed an interest in working part-time due to a
disability but failed to secure employment. Rooms in the house were
extremely dirty and occasionally impassable. Mother submitted photographs
purporting to show the suitability of the home for Children, but those
photographs were taken well after the termination petition was filed and
were not considered by the court. See 23 Pa.C.S.A. § 2511(b). Children
often appeared unkempt in dirty clothing and laundry would pile up in the
house. A CYS caseworker testified that Children were out of control at times
during visits, but Mother was unresponsive. The court-appointed special
advocate described the visits as chaotic. The caseworker also testified that
Mother made no effort to initiate services after IFS was unsuccessful and
Children were removed from her home. Dr. Kashurba opined that Mother
has failed to improve her ability to implement parenting strategies to a point
where she can appropriately parent Children on an ongoing basis. Dr.
Kashurba stated that Mother’s inadequate supervision and discipline of
Children places them at risk of harm. Thus, CYS presented clear and
convincing evidence to warrant termination of Mother’s parental rights to
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Children under Sections 2511(a)(1), (2), (5), and (8). See In re Adoption
of K.J., supra.
With respect to Section 2511(b), the CYS caseworker testified that
Children have bonds with Mother but stated A.N.S. and S.N.S. are old
enough to recognize the stability of their current living arrangement and
want to remain in foster care.2 The caseworker further testified that
Children have strong bonds with their foster parents. The caseworker
provided extensive testimony on the improvement of Children’s behavior and
lives since they were placed in a stable and structured foster care
environment. The caseworker opined that Mother is unable to provide
stability to any of Children in a manner that would allow them to flourish as
they have in foster care. The caseworker concluded termination of Mother’s
parental rights was in Children’s best interest. The trial court’s Section
2511(b) analysis makes clear it considered the caseworker’s testimony and
whether severing Mother’s bond with Children would destroy an existing,
necessary and beneficial relationship. See In re Z.P., supra. No “magic
words” were required. See In re K.Z.S., supra. The record supports the
court’s conclusion that termination of Mother’s parental rights is in Children’s
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2
The caseworker responded “yes” to the question, “Have you noticed a bond
between [Mother] and the children?” (N.T. Termination Hearing, 5/13/16, at
21). During the ensuing questioning, however, the caseworker referred
specifically to A.N.S. and S.N.S. It is unclear whether the caseworker
intended to convey that Mother has a bond with T.I.W.S. as well.
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best interests.3 See 23 Pa.C.S.A. § 2511(b); In re C.P., supra.
Accordingly, we affirm.4
Order affirmed.
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3
The court in part relied on exhibits absent from the certified record, but the
information quoted from those exhibits mirrors the testimony of the
caseworkers and psychologist at the termination hearings.
4
On October 28, 2016, Mother filed a motion to consolidate this appeal with
the appeal she filed at 1219 WDA 2016. Mother’s stated basis for that
appeal is the trial court’s finding of aggravated circumstances with respect to
the dependency adjudication of one of Mother’s other children, K.S. The
appeal at 1219 WDA 2016 is from a different order and involves a distinct
issue, which Mother has not briefed. See Pa.R.A.P. 513 (stating this Court
may exercise its discretion to consolidate multiple appeals where more than
one appeal is from same order, or where same question is involved in two or
more appeals in different cases). Therefore, we deny Mother’s motion to
consolidate. Mother may take whatever action she deems necessary in the
appeal at 1219 WDA 2016 in the wake of this Court’s disposition of the
current appeal.
Separately, Father filed a brief as a “participant” in this appeal, arguing that
the court improperly terminated his parental rights to Children. On
November 7, 2016, CYS and the guardian ad litem (“GAL”) filed motions to
“quash” Father’s brief in whole or in part. Father at no time filed a notice of
appeal from the trial court’s order terminating his parental rights. Father
may not simply “piggyback” on Mother’s notice of appeal. Consequently,
this Court has no jurisdiction over his claims. See Pa.R.A.P. 903(a) (stating
notice of appeal must be filed within thirty days after entry of order form
which appeal is taken); Commonwealth v. Green, 862 A.2d 613
(Pa.Super. 2004), appeal denied, 584 Pa. 692, 882 A.2d 477 (2005) (stating
jurisdiction is vested in Superior Court upon filing of timely notice of appeal).
Therefore, we grant CYS’ and the GAL’s open motions and suppress Father’s
brief in full.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2016
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