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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: X.A.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: X.V.-M., MOTHER :
:
:
:
: No. 1250 EDA 2016
Appeal from the Order April 11, 2016
in the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): CP-51-AP-0000028-2016,
CP-51-DP-0002781-2014
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 12, 2016
Appellant, X.V.-M. (“Mother”), appeals from the Order entered in the
Court of Common Pleas of Philadelphia County on April 11, 2016,
involuntarily terminating her parental rights to X.A.M. (born in November of
2014) (“Child”), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and
(b).1 We affirm.
On November 9, 2014, this family became known to the Department
of Human Services (“DHS”) when DHS received a General Protective
Services (“GPS”) report. The GPS report alleged that Mother tested positive
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*Former Justice specially assigned to the Superior Court.
1
L.F. (“Father”) filed an appeal, pro se, of the trial court’s Order
involuntarily terminating his parental rights at Superior Court Docket No.
1516 EDA 2016. That appeal is not before this Panel for consideration.
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for the drug PCP, had been a victim of Father’s domestic abuse, and had a
history of mental health problems. On November 26, 2014, Mother asked
her mother to care for Child. Child’s maternal grandmother, in turn, took
Child to an “aunt’s” home.2 On November 28, 2016, DHS visited the aunt’s
home and observed that the home did not have adequate food. That same
day, DHS obtained an order for protective custody and placed Child in a
Crisis Nursery program. On December 10, 2014, Child was adjudicated
dependent.
On January 12, 2016, DHS filed a petition to involuntarily terminate
Mother’s parental rights pursuant to Section 2511(a)(1), (2), (5), (8), and
(b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b),
and change Child’s permanency goal to adoption. The trial court held
hearings on the petition on January 28, 2016, and April 11, 2016. At these
hearings, the trial court heard testimony from Amanda Fernandez, a
Community Umbrella Agency (“CUA”) caseworker and Mother. By an order
entered April 11, 2016, the trial court terminated Mother’s parental rights to
Child and changed Child’s goal to adoption.
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2
The trial court referenced an “aunt” in its opinions. However, neither the
trial court’s opinions nor the certified record specifies the aunt’s relationship
to Mother or Child.
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On April 13, 2016, Mother timely filed the instant appeal, along with a
concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
In her brief, Mother raises the following issues for our review:
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother[] pursuant to 23
Pa.C.S.A. [§] 2511(a)(1) where Mother presented evidence that
she tried to perform her parental duties to the best of her
abilities[?]
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother pursuant to 23
Pa.C.S.A. [§] 2511(a)(2) where Mother presented evidence that
she remedied her situation by participating in mental health
treatment with medication management and drug treatment and
has the present capacity to care for [Child][?]
3. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother pursuant to 23
Pa.C.S.A. [§] 2511(a)(5) where evidence was provided to
establish that [Child] was removed from the care of Mother and
Mother is now capable of caring for [Child][?]
4. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother pursuant to 23
Pa.C.S.A. [§] 2511(a)(8) where evidence was presented to show
that Mother is now capable of caring for [Child] since [Mother]
participated in drug treatment and mental health treatment[?]
5. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother pursuant to 23
Pa.C.S.A. [§] 2511(b) where evidence was presented that
established Mother and Child were never given the appropriate
environment for visiting each other[?]
Mother’s Brief at 7.
Our standard of review regarding orders terminating parental rights is
as follows:
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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). 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. This Court has previously stated:
The standard of 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. & J.R.C., 837 A.2d 1247, 1251 (Pa.Super. 2003).
“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. and J.G., Minors, 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). Additionally, this Court “need only agree with [the trial court’s]
decision as to any one subsection in order to affirm the termination of
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parental rights.” In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)(en
banc).
Herein, we review the orders pursuant to Section 2511(a)(1) and (b),
which provide as follows:
§ 2511. Grounds for involuntary termination
(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:
(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.
* * *
(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), (b).
When reviewing the statutory requirements, this Court has found:
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 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 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
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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 his or her physical and emotional
needs.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (internal citations
omitted).
In her brief, Mother contends she has never “evidenced a settled
purpose of relinquishing her parental rights” to Child. Mother’s Brief, at 15.
Mother states that she participated in mental health treatment and drug
treatment. Id. Mother avers that DHS was aware of Mother’s mental
health diagnosis and could have offered Mother “a more therapeutic setting”
in which to visit Child. Id. Mother further argues that DHS should have
used a parenting capacity evaluation to determine what additional services
Mother might utilize to become a better parent. Id.
The trial court found that “Mother, by her conduct, had refused and
failed to perform parental duties.” Trial Court Opinion (“TCO”), 5/24/16, at
7. The trial court stated:
Mother’s SCP[3] objectives were to maintain contact with CUA,
visit Child and build a relationship with him, and engage in
individual therapy, drug and alcohol treatment and mental health
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3
Refers to “single case plan.”
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treatment. Mother last attended drug and alcohol treatment and
individual therapy in August 2015. She was never engaged in
mental health treatment. Mother was originally given bi-weekly
supervised visits, but these were changed to monthly visits
because Mother did not attend. Mother made only one visit
during the six months preceding the filing of the petition.
Mother has not used her visits to build a bond with Child. In
Mother’s own words, “I had too much stuff to do at the same
time.” Mother admitted she had not made her visits even
though she did not have a 9-to-5 job. Mother has an affirmative
duty to perform parental duties, including visitation. Looking
back beyond the six-month period, Mother’s SCP goals have
been the same since the start of this case, and she has
successfully completed none of them. Mother has never been
compliant with court orders.
Id. at 6-7 (citations to notes of testimony omitted).
Ms. Fernandez, the CUA caseworker, testified that Mother has been
non-compliant with her SCP goals. N.T., 1/28/16, at 18. Ms. Fernandez
stated that Mother discharged herself from group therapy after she was
involved in an altercation with another group member and asked to choose
another site for therapy. Id. at 49. Ms. Fernandez also related that Mother
had made only two visits with Child since July of 2015. Id. at 16.
Mother testified she had not been receiving mental health treatment
nor was she enrolled in drug and alcohol treatment. Id. at 53. As the trial
court noted, “Mother has not used her visits to bond with Child. In Mother’s
own words ‘I had too much stuff to do at the same time.’ Mother admitted
she had not made her visits even she did not have a 9-to-5 job.” T.C.O., at
6.
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Our Supreme Court recently rejected the argument that the provision
of reasonable efforts by the county children’s services agency is a factor in
termination of parental rights. See In the Interest of: D.C.D., a Minor,
629 Pa. 325, 343, 105 A.3d 662, 673, 676 (2014) (rejecting suggestion an
agency must provide reasonable efforts to enable parent to reunify with child
prior to the termination of parental rights and suggestion that Section 2511
of the Adoption Act should be read in conjunction with Section 6351 of the
Juvenile Act, particularly Section 6351(f)(9)(iii)). Thus, pursuant to our
Supreme Court’s holding in In the Interest of: D.C.D., a Minor, we find no
merit to Mother’s argument. Moreover, the record makes it apparent that
Mother has failed or refused to perform parental duties. See 23 Pa.C.S.A.
§ 2511(a)(1). Accordingly, the record overwhelmingly supports the trial
court’s Section 2511(a) findings.
Prevailing case law requires this Court additionally to engage in a
discussion of whether the trial court’s order satisfies the requirements of
Section 2511(b). Mother presents a similar argument as that which she
raised in her Section 2511(a)(1) claim, in that she posits she would have
established a parental bond if DHS had provided her adequate services. As
we did in our Section 2511(a)(1) analysis, we disagree with Mother’s
attempt to shift the burden to DHS. See In the Interest of: D.C.D., a
Minor, supra.
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The focus in terminating parental rights under Section 2511(b) is not
on the parent’s conduct, but rather is on the child’s best interest pursuant to
Section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super.
2008) (en banc). Under Section 2511(b), we examine whether termination
of parental rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In re C.M.S., 884 A.2d 1284,
1286 (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.” Id.
When considering Child’s bond and relationship with Mother, the trial
court found that “it was clearly and convincingly established that there was
no parental bond, and that termination of Mother’s parental rights would not
destroy an existing beneficial relationship.” T.C.O., at 14. Ms. Fernandez
testified that Mother visited Child only twice since June of 2015. N.T.,
1/28/16, at 16. Ms. Fernandez stated that Child does not really identify
Mother as his mother at this time. Id. at 24. Ms. Fernandez further
testified that Child would not suffer irreparable harm if Mother’s parental
rights are terminated. Id. Ms. Fernandez concluded that it would be in
Child’s best interest for the permanency goal to be changed to adoption
because Mother has not been compliant with her objectives, nor has she
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been compliant with visitation or building a relationship and bond with Child.
Id. at 22-23.
Child is in a foster home and refers to his foster parent as “Mom.” Id.
at 22. Ms. Fernandez observed that Child is very attached to his foster
parent. Id. Ms. Fernandez stated that she has observed Child in the foster
home, and Child is always happy and smiling. Id.
We find that the trial court gave adequate consideration to the
developmental, physical, and emotional needs of Child, i.e. Child’s best
interest, in determining that Mother’s parental rights should be terminated
pursuant to Section 2511(b). The record supports the trial court’s best
interest analysis. See In re C.M.S., supra.
With the above standard of review in mind, we have thoroughly
reviewed the record, the briefs, and the applicable law, and we find no abuse
of the trial court’s discretion in terminating Mother’s parental rights to Child
pursuant to 23 Pa.C.S. § 2511(a)(1) and (b). As we need to agree with the
trial court’s assessment of only one subsection 2511(a) factor and its
Section 2511(b) assessment, we need not address Mother’s remaining
subsection 2511(a) arguments. See In re B.L.W., supra.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
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