J-S49030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.N.L, A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: Z.S.L., MOTHER
No. 809 EDA 2014
Appeal from the Decree January 29, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000588-2013
CP-51-DP-0001627-2012
CP-51-FN-0002629-2011
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IN THE INTEREST OF: M.S.L, A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: Z.S.L., MOTHER
No. 811 EDA 2014
Appeal from the Decree January 29, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000587-2013
CP-51-DP-0001628-2012
CP-51-FN-0002629-2011
J-S49030-14
BEFORE: OLSON, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 29, 2014
2014, in the Court of Common Pleas of Philadelphia County, involuntarily
terminating her parental rights to her twin children, M.N.L., a female, and
1
M.S.L., a mal We
affirm.
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court ably set
forth the factual and procedural history of this case, which we adopt herein.
See Trial Court Opinion, 4/2/14, at 1-5.2
On October 1, 2013, the Philadelphia Department of Human Services,
adoption. On January 29, 2014, the trial court held a hearing on the
petitions. Mother did not attend the hearing, but she was represented by
See N.T., 1/29/14, at 8-10. DHS presented the
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1
By separate decrees entered on the same date, the parental rights of the
Chi
appeal.
2
We note that the trial court opinion does not contain pagination. We have
assigned each page a sequential number for ease of reference.
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testimony of its caseworker, Leah Allen, and the caseworker from the foster
care agency, Teyana Sawyer. In addition, DHS introduced into evidence
twenty-three exhibits, without objection. See id.
did not present any evidence.
By decrees dated and entered on January 29, 2014, the court
§ 2511(a)(1), (2), (5), (8), and (b). By orders the same date, the court
notices of appeal and concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated
sua sponte.
On appeal, Mother presents two issues:
1. Did the Court erroneously find that proper service was made
on [Mother]?
2. Did the Court erroneously fail to find that [Mother] had made
some compliance with the Family Service Plan?
3
In her first issue, Mother asserts that she did not receive notice of the
guarantee of due process of law under the Fourteenth Amendment to the
Un
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3
In her brief, Mother does not assert any error by the trial court with
respect to the goal change orders. Therefore, we do not review them.
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adequate notice, an opportunity to be heard, and the chance to defend
In re
J.N.F., 887 A.2d 775, 781 (Pa. Super. 2005).
Section 2513(b) provides, in pertinent part:
(b) NOTICE.--
parent or parents, putative father, or parent of a minor parent
whose rights are to be terminated, by personal service or by
registered mail to his or their last known address or by such
other means as the court may require. A copy of the notice shall
be given in the same manner to the other parent, putative father
or parent or guardian of a minor parent whose rights are to be
terminated. . . .
23 Pa.C.S.A. § 2513(b).
At the beginning of the hearing, counsel for DHS introduced into
evidence the return of service with respect to Mother, dated January 7,
2014, which counsel and the court together read into the record. See N.T.,
1/29/14, at 4-6, Exhibit A. Thereafter, the following colloquy occurred:
[DHS counsel]: I would ask Your Honor to find on notice.
Id. at 5.4
we conclude t See MacNutt v. Temple
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4
Counsel for DHS also stated on the record in open court that this was the
third time Mother received notice, as the termination hearing was scheduled
for two prior dates, in October and December of 2013. See N.T., 1/29/14,
at 4-6.
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Univ. Hosp., 932 A.2d 980, 992 (Pa. Super. 2007) (holding that in order to
preserve an issue for appellate review, litigants must make timely and
specific objections during trial); see also Pa.R.A.P. 302(a). To the extent
brief at 5. To preserve an issue for appellate review, it is necessary that the
litigant make a specific objection during trial. We have explained, as
follows:
In order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to
a basic and fundamental error will result in waiver of that issue.
On appeal the Superior Court will not consider a claim which was
committed could have been corrected. In this jurisdiction . . .
one must object to errors, improprieties or irregularities at the
earliest possible stage of the adjudicatory process to afford the
jurist hearing the case the first occasion to remedy the wrong
and possibly avoid an unnecessary appeal to complain of the
matter.
Thompson v. Thompson, 963 A.2d 474, 475-476 (Pa. Super. 2008)
(quoting Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000)
(emphasis added)). Based upon our review of the record, we conclude that
Mother has failed to preserve this issue for appeal. Accordingly, we proceed
Mother argues, in full, that if she
evidence[] regarding her compliance with the FSP [Family Service Plan]
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objections and the existence of dependency issues. There was a lack of
current evid
We review this issue according to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; R.I.S., 36
A.3d [567,] 572 [(Pa. 2011) (plurality)]. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
34 A.3d 1, 51 ([Pa.] 2011); Christianson v. Ely, 838 A.2d 630,
634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying
an abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d
at 1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
clusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826 827 (Pa. 2012).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis:
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the
parent. The party seeking termination must prove by clear and
statutory grounds for termination delineated in Section 2511(a).
termination of his or her 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. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A.
§ 2511). The burden is on the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
Instantly, we c
parental rights pursuant to Section 2511(a)(2) and (b), which provide as
follows:5
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5
See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc) (stating
that this Court need only agree with any one subsection of 23 Pa.C.S.A. §
2511(a), in addition to Section 2511(b), in order to affirm the termination of
parental rights).
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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:
...
(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.
...
(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)(2), (b).
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
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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 A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
With respect to Section 2511(b), the requisite analysis is as follows:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
rt, security, and stability are
In addition, we instructed that the trial 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. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Upon review, we conclude that the evidence supports the termination
repeated and continued incapacity, neglect, or refusal have caused the
Children to be without essential parental care, control or subsistence
necessary for their physical or mental well-being. Further, the record
demonstrates that the causes of the incapacity, neglect, or refusal cannot or
will not be remedied. Indeed, the record reveals that the Children were
placed in the custody of DHS in September of 2012. Leah Allen, the DHS
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caseworker, testifi
complete any of her FSP objectives. Id. at 14. As such, we discern no
abuse of discretion by the court with respect to Section 2511(a)(2).
In light of the requisite bifurcated analysis for the involuntary
termination of parental rights, we next review the decrees pursuant to
Section 2511(b). In In re T.S.M., 71 A.3d 251 (Pa. 2013), our Supreme
termination must also consider whether the children are in a pre-adoptive
Id. at 268.
Moreover, the Court directed that, in weighing the bond considerations
T.S.M.
young for a scant number of years, and we have an obligation to see to their
healthy development quickly. When courts fail . . . the result, all too often,
Id. at 269.
Instantly, Ms. Allen testified that the Children are in a pre-adoptive
home. N.T., 1/29/14, at 13. Furthermore, since December of 2012, when
the Children were one years old, to the time of the termination hearing,
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Opinion, 4/2/14, at 7 (citation to record omitted). The trial court made the
following findings, which the testimonial evidence supports:
The foster mother has a maternal bond with the [C]hildren. The
[C]hildren seek foster mother to satisfy their needs. No
maternal bond exists with the Mother, as [the C]hildren do not
call her by any name. The [C]hildren play with their biological
Mother as a friend. The [C]hildren do not exhibit any type of
sadness when the Mother leaves [after supervised visits].
Trial Court Opinion, 4/2/14, at 8 (citations to record omitted).
Based upon our review of the record, we discern no abuse of discretion
§ 2511(b). We further observe that
the Child Advocate filed a brief in support of the termination decrees.
pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b).
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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In the Interest of: M.N.L. Appeal of: Z.S.L.
Combined Opinion