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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.K.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.R., MOTHER :
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:
: No. 3887 EDA 2016
Appeal from the Decree and Order December 13, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000915-2016
IN THE INTEREST OF: S.C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.R., MOTHER :
:
:
:
: No. 3889 EDA 2016
Appeal from the Decree and Order December 13, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000916-2016
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 09, 2017
S.R. (“Mother”) appeals from the December 13, 2016 decrees and
orders involuntarily terminating her parental rights to K.K.R. (born in August
of 2011) and S.C.R. (born in October of 2012) (collectively “Children”)
pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and
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*
Former Justice specially assigned to the Superior Court.
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(b), and changing Children’s permanency goal to adoption under the
Juvenile Act, 42 Pa.C.S. § 6351.1 We affirm.
On March 5, 2015, Mother and Children first became known to the
Department of Human Services of Philadelphia County (“DHS”) as a result of
a General Protective Services (“GPS”) report alleging that Mother resided in
an unfit house with Children, abused drugs, did not provide adequate food,
and neglected Children. On March 20, 2015, Mother and Children moved to
a drug and alcohol rehabilitation shelter. Mother was discharged from the
shelter due to her non-compliance and inappropriate behavior towards
Children. Mother and Children then moved into another shelter on April 17,
2015. Shortly thereafter, the shelter evicted Mother after a staff member
observed her inappropriately disciplining Children, which included spanking
and pinching them. On April 27, 2015, Mother admitted that she hits
Children when DHS met with her to discuss the allegations. On same day,
DHS obtained an Order of Protective Custody (“OPC”) for Children and
placed them with their maternal aunt, B.C. (“Maternal Aunt”).
At the shelter care hearing on April 29, 2015, the trial court lifted the
OPC and ordered the temporary commitment to DHS to stand. The trial
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1
Children have different biological fathers. The putative father of K.K.R. is
unknown, and the putative father of S.C.R. is K.M. (“Father-2”). In separate
decrees and orders entered on December 13, 2016, the trial court
involuntarily terminated the parental rights of unknown father to K.K.R. and
Father-2 to S.C.R. The unknown father of K.K.R. and Father-2 are not
parties to the current appeal, nor did they file separate appeals.
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court granted Mother supervised visitation and referred her to the Clinical
Evaluation Unit (“CEU”) for a drug and alcohol screening and dual diagnosis
assessment for mental health and substance abuse. The CEU report issued
a progress report on May 5, 2015, revealing Mother tested positive for
marijuana and PCP.
On May 8, 2015, the trial court adjudicated Children dependent and
committed them to DHS. The case was transferred to the Community
Umbrella Agency (“CUA”), which developed a Single Case Plan (“SCP”) for
reunification with Children. Mother’s SCP objectives were: (1) to participate
in a dual diagnosis treatment and submit to random drug screens at CEU;
(2) to receive referral for Achieving Reunification Center (“ARC”); (3) to
engage in parent education classes; (4) to obtain appropriate housing; and
(5) to attend supervised visitation with Children. Mother’s SCP objectives
have remained the same throughout the duration of the case.
On October 5, 2016, DHS filed petitions to involuntarily terminate
Mother’s parental rights and change Children’s permanency goal to adoption.
On December 13, 2016, the trial court held a hearing on the petitions. At
the hearing, DHS presented the testimony of Essence Jones, the CUA case
manager at Turning Points. Mother, represented by counsel, testified on her
own behalf. Father-2, represented by counsel, also testified. At the
conclusion of the hearing, the trial court entered decrees and orders
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terminating Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(2), (5), (8), and (b), and changing Children’s permanency goal to adoption.
On December 30, 2016, while represented by counsel, Mother filed pro
se notices of appeal and statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).2 On January 11, 2017, counsel
for Mother, filed amended concise statements of errors complained of on
appeal in accordance to Pa.R.A.P. 1925(b). This Court consolidated Mother’s
appeals sua sponte on January 17, 2017. Mother raises the following issues.
Whether the trial court committed reversible errors when it
involuntarily terminated Mother’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), (a)(2), (a)(5), and (a)(8)?
Whether the trial court committed reversible errors when it
involuntarily terminated Mother’s parental rights without
giving primary consideration to the effect that the
termination would have on the developmental, physical
and emotional needs of the child as required by the
adoption act, 23 Pa.C.S. § 2511(b)?
Mother’s Brief at 4.3
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2
We note that Mother’s pro se concise statements of errors failed to
adequately identify in a concise manner or with specificity the issues sought
to be pursued on appeal in accordance with Rule 1925(b)(4)(ii). As such,
the trial court directed counsel to assist Mother with her appeals.
3
In her amended concise statement of errors complained of on appeal and
appellate brief, Mother did not challenge the trial court’s orders changing
Children’s permanency goal to adoption. Thus, this issue is waived. See
Krebs v. United Refining Co., 893 A.2d 776, 797 (Pa. Super. 2006)
(holding that an appellant waives issues that are not raised in both his
(Footnote Continued Next Page)
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We summarize Mother’s two arguments together. Mother contends
that the evidence makes it clear that DHS did not prove by clear and
convincing evidence that her parental rights should be terminated pursuant
to Section 2511(a) of the Adoption Act. Mother’s Brief at 8. Mother points
out that she has made progress during the course of the case and has
demonstrated a willingness to remedy the conditions and causes of the
incapacity, abuse, neglect or refusal to perform parental duties. Id. at 11.
Since the evidence failed to establish that her relationship with Children was
severed, Mother argues that DHS failed to prove that termination under
Section 2511(b) was in the best interests of Children. Id. at 13.
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.
_______________________
(Footnote Continued)
concise statement of errors complained of on appeal and the statement of
questions involved in his brief on appeal).
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In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). 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.
Id. at 806. 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.”
In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003) (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). “[I]f 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) (quoting In
re: N.C., 763 A.2d 913, 917 (Pa. Super. 2000)). Additionally, this Court
“need only agree with [the trial court’s] decision as to any one subsection in
order to affirm the termination of parental rights.” In re B.L.W., 843 A.2d
380, 384 (Pa. Super. 2004) (en banc).
In this case, the trial court terminated Mother’s parental rights
pursuant to Section 2511(a)(1), (2), (5), (8), and (b), which provides as
follows:
(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:
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(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 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
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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)(1), (2), (5), (8), and (b).
Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in Section
2511(a). Only if the court determines that the parent’s
conduct warrants termination of his . . . parental rights
does the court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the needs
and welfare of the child under the standard of best
interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (internal citations
omitted). “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).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of Section 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
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Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to [s]ection 2511(a)(1)
if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform
parental duties or a settled purpose of relinquishing
parental rights, the court must engage in three lines
of inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child
pursuant to [s]ection 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he 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 his…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) (internal citations
omitted).
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
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A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). “Parents are required to
make diligent efforts toward the reasonably prompt assumption of full
parental responsibilities.” Id. at 340. Pursuant to 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 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., 994 A.2d at 1118.
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (1) [t]he child has been removed from
parental care for [twelve] 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).
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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., 994 A.2d at
1121.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
Id. (internal citations omitted).
“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 his or her rights terminated.” In re
B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001). Regarding the definition of
“parental duties,” this Court has stated:
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
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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.
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 his or 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 at 855. “[A] parent’s basic constitutional right to
the custody and rearing of his or her 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.” Id. at 856.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Joseph
Fernandes, we conclude Mother’s issues on appeal merit no relief. The trial
court’s opinion comprehensively discusses and properly disposes of the
questions presented. See Trial Ct. Op., 1/17/17 , at 3-10 (finding: Children
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have been removed from Mother’s custody since April 27, 2015, nineteen
months at the time of trial due to her drug abuse and inability to
appropriately parent Children; Mother’s compliance with her SCP goals has
steadily declined; Mother tested positive for PCP on September 9th and 29th
of 2016; Mother stopped attending her dual diagnosis treatment program
and was discharged without successfully completing the program; Mother
was referred to ARC for parenting classes, but was unsuccessfully
discharged; Mother chose to complete parenting classes elsewhere, but
these classes did not improve her ability to parent; Mother has never had
appropriate housing; Mother currently lives at a shelter where Children
cannot join her; Mother’s recent tardiness to her supervised visits with
Children has caused some of the visits to be canceled; Mother has visited
Children only twice in the last three months; Mother's inconsistency in
visiting Children has caused their relationship to become unhealthy; Mother’s
bond with Children has become very attenuated; Mother cannot provide
Children with permanency; Maternal Aunt has provided Children with love,
care and stability for the last nineteen months; CUA case manager credibly
testified regarding the lack of parental relationship between Mother and
Children in contrast to the parental bond that exists between Children and
Maternal Aunt; termination of Mother’s parental rights would not cause
Children irreparable harm; record demonstrates Mother’s repeated
unwillingness to remedy the cause of her incapacity to parent, her failure to
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perform any parental duties, and her inability to remedy conditions that led
to the placement of Children; evidence is clear and convincing that
termination of Mother’s parental rights would be in best interests of Children;
thus, court properly terminated Mother’s parental rights pursuant to Sections
2511(a)(1), (2), (5), (8), and (b)). Accordingly, we affirm on the basis of
the trial court opinion.
Decrees and orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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