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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.C., MOTHER :
: No. 1588 MDA 2017
Appeal from the Decree Entered August 31, 2017
in the Court of Common Pleas of Tioga County
Orphans’ Court Division at No.: 43 OC 2017
IN RE: A.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.C., MOTHER :
: No. 1589 MDA 2017
Appeal from the Decree Entered August 31, 2017
in the Court of Common Pleas of Tioga County
Orphans’ Court Division at No.: 44 OC 2017
BEFORE: GANTMAN, P.J., McLAUGHLIN, AND PLATT, JJ.
MEMORANDUM BY PLATT, J.: FILED JULY 03, 2018
In these consolidated cases1, C.C. (Mother) appeals the decrees of the
Court of Common Pleas of Tioga County, entered August 31, 2017, that
involuntarily terminated her parental rights to her daughters, K.S. (born 5/11)
and A.C. (born 12/12) (Children).2 We affirm.
Retired Senior Judge assigned to Superior Court.
1 This Court consolidated these cases, sua sponte, on November 28, 2017.
2 The trial court also terminated the parental rights of K.S.’s father, E.B. E.B.
did not appeal that termination and he is not a party to this appeal.
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The trial court first adjudicated the Children dependent by an order
entered on October 21, 2014. The trial court entered the order after Mother
allowed the Children to spend unsupervised time with A.C.’s father, D.C., who
was a registered sex offender, and because Mother had both physical and
mental conditions that affected her ability to parent the Children, making it
unsafe for them to remain in the home. In an order entered September 24,
2015, the trial court found aggravated circumstances as to D.C. and ordered
that reunification efforts with him were not necessary.
Tioga County Department of Human Services (DHS) placed the Children
with a paternal aunt (Paternal Aunt) as a kinship provider and, when Mother
and both Fathers agreed to transfer custody of the Children to Paternal Aunt,
the trial court closed the case.
Mother had visitation with the Children, and Paternal Aunt complained
about the difficulty dealing with what she termed Mother’s “harassment” and
requested that DHS remove the Children from her home. DHS filed a
dependency petition on September 4, 2015. The trial court adjudicated the
Children dependent on September 24, 2015, and placed them in foster care,
where they had resided continuously for twenty-two months at the time of the
termination hearing July 25, 2017. They had not been in Mother’s care and
custody for approximately thirty-three months.
The Children have been receiving therapy for an extended period of
time. Dr. Denise Fager testified that A.C. had significant behavioral issues,
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specifically sexualized behaviors, which led to a trauma evaluation and a
diagnosis of post-traumatic stress disorder that required trauma therapy.
(See N.T. Hearing, 7/25/17, at 20). K.S. was also in counseling with a
diagnosis of generalized anxiety disorder Not Otherwise Specified (NOS).
(See id. at 21). Dr. Fager noted that A.C.’s Adverse Childhood Experience
(ACE) score was a 4 out of 10 and K.S.’s score was a 5 out of 10. (See id. at
23). Dr. Fager indicated that this score indicated that the Children would
suffer from trauma symptoms and require treatment. (See id.).
Testimony from providers and caseworkers showed that, despite
services DHS offered for a considerable period, Mother had made little
progress in alleviating the circumstances that led to placement. Specifically,
Mother was discharged from the Support, Teach and Educate Parents (STEPS)
program because of a lack of compliance, and from the Intensive Case
Management (ICM) program because she was only “minimally compliant” with
her goals. (Id. at 90; see id. at 84-85). Caseworker Brandi Greene testified
that Mother did not complete her family service plan goals and continued to
be argumentative and uncooperative with DHS even up to the date of the
hearing. (See id. at 111).
Mother’s visitation was changed from unsupervised to supervised after
she permitted the Children to have unsupervised contact with D.C. in February
and March of 2017. These contacts resulted in the filing of a child abuse report
deemed indicated for creating a likelihood of sexual abuse or exploitation of a
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child through an act or failure to act. (See id. at 117). Both Mother and D.C.
were named on the reports of unsupervised contact with D.C. Mother testified
about the circumstances of the incidents but denied any responsibility and
seemed unaware of both the implications of defying a court order or the
impact contact with D.C. might have on the Children. (See id. at 151-53).
On August 31 and September 8, 2017, the trial court entered its decrees
and opinions, dated August 31, 2017, involuntarily terminating Mother’s
parental rights. Mother timely filed her notices of appeal and concise
statements of errors complained of on appeal on October 4, 2017. See
Pa.R.A.P. 1925(a)(2)(i). The trial court did not issue any additional opinion.
See Pa.R.A.P. 1925(a).
Mother raises the following questions on appeal:
1. Did the trial court abuse its discretion determining that the best
interest of the [C]hildren would be served by terminating the
[M]other’s parental rights?
2. Did the trial court abuse its discretion in determining that
[M]other did not have sufficient protective capacity of her
[C]hildren?
3. Did the trial court abuse its discretion in not allowing [M]other
to voluntarily relinquish her parental rights when the trial court
held the record open and had not yet issued a final order regarding
the termination of parental rights?
(Mother’s Brief, at 5).
Our standard of review in the termination of parental rights is as follows:
In an appeal from an order terminating parental rights, our scope
of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
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conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing court
even though the record could support an opposite result.
We are bound by the findings of the trial court
which have adequate support in the record so long as
the findings do not evidence capricious disregard for
competent and credible evidence. 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.
Though we are not bound by the trial court’s
inferences and deductions, we may reject its
conclusions only if they involve errors of law or are
clearly unreasonable in light of the trial court’s
sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
The trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). In order to affirm the
termination of parental rights, this Court need only agree with any one
subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Requests to have a natural parent’s parental rights terminated are
governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 2511. Grounds for involuntary termination
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(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:
* * *
(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)(8) and (b).
Here, the trial court concluded that termination was appropriate under
§ 2511(a)(8).
With regard to Section 2511(a)(8), in order to terminate
parental rights, an agency must prove by clear and convincing
evidence that (1) that [sic] the child has been removed from the
care of the parent for at least twelve (12) months; (2) that the
conditions which had led to the removal or placement of the child
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still exist; and (3) that termination of parental rights would best
serve the needs and welfare of the child.
In re: C.L.G., 956 A.2d 999, 1005 (Pa. Super. 2008) (en banc) (citations
omitted).
It is well-settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which 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
T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further,
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 his or her
physical and emotional needs.
In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation
omitted).
The Adoption Act provides that a trial court “shall give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S.A. § 2511(b). The Act does not make specific
reference to an evaluation of the bond between parent and child but our case
law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481,
484-85 (Pa. 1993). However, this Court has held that the trial court is not
required by statute or precedent to order a formal bonding evaluation
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performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super.
2008).
In the cases on appeal, the trial court’s analysis of subsection (a)(8) in
its two separate opinions is identical, only the names of the Children differ.
We quote the trial court here, with approval, by inserting the identities of the
two Children into one analysis:
The [trial c]ourt will begin its analysis with the provisions of
[§ 2511](a)(8), which requires that [DHS] establish by clear and
convincing evidence that the child has been removed from the
care of the parent by court order, or under voluntary agreement
twelve (12) or more months have lapsed from the date of removal
or placement the conditions which led to the removal or placement
of the child continue to exist and the termination of parental rights
would best serve the need and welfare of the child.
As to [Mother], the [trial c]ourt, again, notes [K.S./A.C.]
[have] been removed from [Mother’s] custody for over two years,
nearly two years in the dependency action and in an excess of two
years going back to the voluntary custody agreement that was
entered to avoid an initial removal of [K.S./A.C.] from the home.
The [trial c]ourt notes that the first prong of twelve (12)
months or more have elapsed since the date of removal is,
therefore, established by clear and convincing evidence [sic].
The [trial c]ourt further finds that [DHS] has established by
clear and convincing evidence that the conditions which led to the
removal and ultimate placement of [K.S./A.C.] continue to exist.
Specifically, the [c]ourt, again, notes that a fundamental
underlying issue has been the failure of [Mother] to demonstrate
a protective capacity or exercise and demonstrate parental
competence.
The [trial c]ourt notes [DHS] has provided services as
directed by the [c]ourt and as mandated by law. At no time has
[DHS] withheld or denied services. To the contrary, [Mother] has
at times refused all services as is the case most currently. At
other times, the [c]ourt finds based on the testimony it deems
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credible today, she has accepted services but has not followed
through and not demonstrated [any] improvement in parental
capacity.
The [c]ourt, again, finds and notes the absolute lack of
protective capacity demonstrated by [Mother’s] acknowledgement
that she, on at least one occasion, permitted the [C]hildren to
remain in contact and in the same location as [D.C.] despite the
[c]ourt’s prior clear and ongoing prohibition on such behavior.
Rather than removing the [C]hildren from the situation, according
to her and her testimony, she facilitated the continuing contact
through the hair cut or other behavior and contact.
The [trial c]ourt notes that it specifically finds credible the
testimony of caseworker, Ms. Greene, as to the indicated findings
of abuse, based on contacts which were more extensive than the
one which [Mother] has acknowledged. Therefore, the [c]ourt
finds [DHS] has met the second prong by clear and convincing
evidence.
The third prong requires the [trial c]ourt to consider whether
or not termination would best serve the needs and welfare of
[K.S./A.C.]. According to the uncontroverted testimony of Dr.
Fager, [K.S./A.C.] require[] and desire[] that permanency be
established in [their lives]. The [c]ourt notes that [K.S./A.C.]
ha[ve] demonstrated significant progress in [their] treatment
through therapy and that this progress has been noted to be
substantially increased since March of this year. The [c]ourt finds
as credible that this progress is supported by the stability and
consistency which is provided within the foster placement; and
that the need[s] of [K.S./A.C.] for permanency [are] fundamental
to [their] best interests, and that [their] best interests would,
accordingly, for these reasons and others discussed below, be
supported by the termination of the parental rights of [Mother].
(Trial Court Opinions, Nos. 43 and 44 OC 2017, 8/31/17, at 3-5).
Our review of the record reveals that the trial court did not abuse its
discretion when it terminated Mother’s parental rights to the Children pursuant
to 23 Pa.C.S.A. § 2511(a)(8). Thus, Mother’s second issue is meritless.
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After considering the best interests of K.S. in this matter, the trial court
found:
The [c]ourt has received credible testimony that [K.S.] has
flourished in her foster placement through the ongoing stability
and consistency demonstrated within that home and in
conjunction with the therapy which has been provided by the
professionals in this case that [K.S.] has been able to address
significant behavioral and other issues related to trauma and the
anxiety experienced in her life prior to placement. That [K.S.] has
developed connections within the [foster] home, that the [foster
parents] have offered credible testimony that they are willing to
allow permanency and pursue permanency in the form of adoption
and legally enroll or bring [K.S.] in their home as a child.
The [trial c]ourt finds that the best interest of [K.S.] would
clearly be served by the establishment of permanency as soon as
possible in a home where she will have continued stability and
consistency, and will continue to have support and access to
counseling, and that those needs are best met by the grant of
termination.
(Trial Ct. Op., No. 43 OC 2017, at 7).
The trial court made a similar finding in regard to A.C.:
The [c]ourt, in considering the best interests of [A.C.] in this
matter, notes that she has been in placement nearly half of her
life; that she has developed significant bonds with [her foster]
family, as acknowledged even by [Mother]; that the bond between
[A.C.] and her sister [K.S.] is of significant value and should be
preserved if at all possible; and the bond between [A.C.] and the
other children in the [foster] home, and in fact all other members
of the [foster] family, including [foster parents], is significant and
will be a valuable resource in ensuring her well-being and best
interests going forward, if the [foster parents] are indeed the
permanency option.
The [c]ourt finds that the best interest of [A.C.] would
clearly be served by the establishment of permanency as soon as
possible in a home where she will have continued stability and
consistency, and will continue to have support and access to
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counseling, and that those needs are best met by the grant of
termination.
(Trial Ct. Op., No. 44 OC 2017, at 7).
Our review of the record reveals that the trial court did not abuse its
discretion when it determined that the best interests of the Children would be
served by the termination of Mother’s parental rights to them pursuant to
subsection 23 Pa.C.S.A. § 2511(b). Accordingly, we conclude that Mother’s
first issue is meritless.
In her final issue, Mother complains that trial court abused its discretion
when it did not allow her to voluntarily relinquish her parental rights when the
trial court, after hearing all testimony, held the record open to permit D.C. the
opportunity to voluntarily relinquish his parental rights before issuing decrees
as to Mother and E.B. (See Mother’s Brief, at 17). We disagree.
In In re Adoption of A.M.B., 812 A.2d 659, 667-68 (Pa. Super 2002),
this Court held that the involuntary termination of a mother’s parental rights
was appropriate where the mother sought to voluntarily terminate her rights
after the agency involved had filed an involuntary termination petition, and
where the purpose of her petition was to avoid having an involuntary
termination of rights from being considered an aggravated circumstance in
any future termination proceeding.
Additionally, in this Court’s decision in In re C.M.C., 140 A.3d 699, 711
(Pa. Super. 2016), we held the trial court could not properly accept the
mother’s voluntary relinquishment of her parental rights in a case such as the
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one before us, where the trial court had already heard testimony on an
involuntary termination petition. We reversed the voluntary termination, and
remanded for further proceedings. Mother’s third issue is without merit.
Accordingly, we affirm the decrees of the Court of Common Pleas of
Tioga County that terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(8) and (b), and changed the Children’s goals to adoption.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/18
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In Re: K.S., a Minor
Combined Opinion