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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.K.S., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: F.H., Mother : No. 2778 EDA 2016
Appeal from the Order July 21, 2016
in the Court of Common Pleas of Philadelphia County,
Juvenile Division, No(s): CP-51-AP-0000587-2016;
CP-51-DP-0001111-2013
IN THE INTEREST OF: C.A.S., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
APPEAL OF: F.H., Mother : No. 2779 EDA 2016
Appeal from the Order July 21, 2016
in the Court of Common Pleas of Philadelphia County,
Juvenile Division, No(s): CP-51-AP-0000588-2016;
CP-51-DP-0001112-2013
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 31, 2017
F.H. (“Mother”) appeals from the Orders (collectively “the Termination
Orders”) granting the Petitions to terminate her parental rights to her
children, C.A.S., born in August 2012, and N.K.S., born in March 2011
(collectively “the Children”), filed by the Philadelphia Department of Human
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Services (“DHS”), and changing the Children’s permanency goals from
reunification to adoption.1 We affirm.
The trial court set forth in its Opinion the relevant factual and
procedural history underlying this case, which we adopt as though fully set
forth herein. See Trial Court Opinion, 2/27/17, at 1-5.2
On July 21, 2016, the trial court entered the Termination Orders
involuntarily terminating Mother’s parental rights to the Children pursuant to
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Mother filed separate,
timely Notices of Appeal from the Termination Orders, along with Concise
Statements of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). In September 2016, this Court, sua sponte,
1
By Orders entered on July 21, 2016, the trial court also involuntarily
terminated the parental rights of the Children’s biological father, R.S.
(“Father”), and changed the Children’s permanency goals to adoption.
Father did not file an appeal and is not a party to the instant appeal.
2
Since March 2013, the Children have resided with their pre-adoptive foster
parents, Mr. and Mrs. G. (collectively “the foster parents”). Mr. G.
(hereinafter “foster parent”) testified at the termination hearing held on July
21, 2016 (hereinafter “the termination hearing”). At the termination
hearing, DHS presented the testimony of the social worker assigned to the
family, Stephanie Blanc (hereinafter “social worker”). Mother testified on
her own behalf.
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consolidated the appeals.3
Mother now presents the following issues for our review:
1. Did the trial court err in changing [the Children’s
permanency] goal[s] to adoption and terminating
[M]other[’s] [] parental rights because [DHS] failed to
establish[,] by clear and convincing evidence, that [Mother]
has evidenced a settled purpose of … relinquishing claim to []
[the C]hild[ren,] or has refused or failed to [] perform
parental duties[?]
2. Did the trial court err in changing [the Children’s
permanency] goal[s] to adoption and terminating
[M]other[’s] [] parental rights because [DHS] failed to
establish[,] by clear and convincing evidence, that the
incapacity, abuse, neglect or refusal of [Mother] cannot or
will not be remedied by the parent[?]
3. Did the trial court err in changing [the Children’s
permanency] goal[s] to adoption and terminating
[M]other[’s] [] parental rights because [DHS] failed to
establish[,] by clear and convincing evidence, that 12 months
or more have elapsed from the date of removal or placement,
the conditions which led to the removal or placement
continue to exist, and termination would best serve the needs
and welfare of [] [the Children?]
4. Did the trial court err in changing [the Children’s
permanency] goal[s] to adoption and terminating
[M]other[’s] [] parental rights because [DHS] failed to
3
We are cognizant of the Pennsylvania Supreme Court’s admonishment of
this Court in regard to delays in Children’s Fast Track cases. In re T.S.M.,
71 A.3d 251, 261 n.21 (Pa. 2013) (stating that “[t]he repeated delays in the
courts below are not fully explained and are unacceptable. We direct the
Superior Court in future cases to ensure that Fast Track cases do not linger,
but instead give such cases ‘priority in both circulation of and voting on
proposed decisions.’” (quoting Superior Court I.O.P. 65.42)). The instant
appeals were delayed for panel listing because the trial court sent the
certified record to this Court over five months late, after repeated prompts
by this Court’s staff and President Judge. Further delays ensued due to two
requests by DHS for extensions of time to file its appellate brief, which were
granted.
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establish[,] by clear and convincing evidence, that
termination of [Mother’s] parental rights would best serve the
needs and welfare of [] [the Children?]
Mother’s Brief at 2. Since Mother’s issues are closely related, we will
address them simultaneously.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
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., [] 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.; [In re] R.I.S., 36 A.3d [567, 572
(Pa. 2011) (plurality opinion)]. 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 [the Supreme Court] discussed in R.J.T., there are
clear reasons for applying an abuse of discretion standard of
review in these cases. [The Court] 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 record and the court’s legal conclusions are not
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the result of an error of law or an abuse of discretion. In re
Adoption of Atencio, [] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “[T]he
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.” Id. (citation and quotation marks omitted).
This Court may affirm a trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a),
along with a consideration of section 2511(b). See In re B.L.W., 843 A.2d
380, 384 (Pa. Super. 2004) (en banc). In the instant case, we will focus on
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.
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(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).
Concerning the requirements of section 2511(a)(1), this Court has
stated as follows:
[] Section 2511[(a)(1)] 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
Section 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 [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 Section 2511(b).
In re Adoption of M.R.D., 128 A.3d 1249, 1261 (Pa. Super. 2015) (en
banc) (emphasis and ellipses omitted).
Moreover,
[t]he biological relationship of parent and child does not vest in
the parents a property right to the custody of the child. Instead,
a parent-child relationship is a status, and one in which the state
has an interest to protect the best interest of the child.
Maintaining a parent-child relationship requires a continued
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interest in the child and a genuine effort to maintain
communication and association with the child.
A parent is required to exert a sincere and genuine effort
to maintain a parent-child relationship; the parent must use 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. This
[C]ourt has repeatedly recognized that 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 immediate physical and emotional needs.
Id. at 1261-62 (citations, quotation marks and ellipses omitted).
Mother argues in her first issue that the trial court abused its
discretion in finding that the requirements of subsection 2511(a)(1)4 had
been met, since “the trial court failed to consider [Mother’s] explanation for
her conduct and … [her] post-abandonment contact with the [C]hildren.”
Mother’s Brief at 6; see also id. (detailing Mother’s reasons for having failed
to complete her parenting objectives and case plan goals, including her
purported “numerous medical maladies”). Mother contends that “[a]s to
[her] post-abandonment contact with the [C]hildren, the record reveals that
[Mother] did participate in visits with [the C]hildren and that those visits
went well[,]” and “[Mother] made herself available for the [C]hildren’s
medical or other appointments.” Id. at 7.
In its Opinion, the trial court addressed Mother’s issue, and
determined that DHS had presented clear and convincing evidence that
4
Mother’s issues numbered two and three concern subsections 2511(a)(2),
(5) and (8), which we need not address. See In re B.L.W., supra.
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termination of Mother’s parental rights to the Children was appropriate
under subsection 2511(a)(1). See Trial Court Opinion, 2/27/17, at 5-6. The
trial court’s findings are supported by the record, and we agree with its
determination that Mother failed to perform her parental duties for a period
of at least six months before DHS’s filing of the Termination Petitions.
Accordingly, we adopt the trial court’s recitation as though fully set forth
herein, see id., and affirm on this basis as to Mother’s first issue, with the
following addendum.
Though Mother alleges on appeal that the trial court failed to consider
that her medical issues caused her failure to complete her objectives, the
record undermines this claim. Mother testified at the termination hearing
that she “gave up” on her objective of compliance with drug and alcohol/dual
diagnosis treatment. See N.T., 7/21/16, at 72; see also id. at 72-73
(wherein Mother explained that she gave up because she was depressed,
defeated and “felt attacked”). Mother further conceded that she failed to
complete parenting classes, not necessarily due to her alleged maladies, but
because of her job, “domestic situations at home,” and her role as the
caretaker of her disabled mother.5 Id. at 74.
Mother also challenges in her first issue the change of the Children’s
placement goal to adoption in her Statement of Questions Presented.
5
Though we acknowledge that Mother did provide documentation verifying
some of her maladies, she did not offer any proof that they were the cause
of her failure to complete her objectives.
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However, she does not set forth any argument supporting such a claim in
her Argument section. Accordingly, this claim is waived. See In re C.R.,
113 A.3d 328, 336 (Pa. Super. 2015) (stating that where an appellate brief
fails to provide any discussion of a claim with citation to relevant authority
or otherwise fails to develop the issue, that claim is waived); see also
Pa.R.A.P. 2119(a) (providing that the argument section of an appellate brief
shall contain discussion of issues raised therein and citation to pertinent
legal authorities).
Next, we review the termination of Mother’s parental rights under
section 2511(b), which Mother challenges in her fourth issue. Mother argues
that the trial court abused its discretion in finding that termination of her
parental rights would best serve the needs and welfare of the Children,
where “the record reveals that the Children were bonded with [Mother], and
that [M]other did visit with [the C]hildren and that those visits went well.”
Mother’s Brief at 12; see also id. at 7 (same).
The focus in terminating parental rights under section 2511(a) is on
the parent, but it is on the child pursuant to section 2511(b). See In re
Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
[I]f the grounds for termination under subsection (a) are met, a
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 emotional needs and welfare of the
child have been properly interpreted to include “[i]ntangibles
such as love, comfort, security, and stability.” In re K.M., 53
A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481,
485 (Pa. 1993)], this Court held that the determination of the
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child’s “needs and welfare” requires consideration of the
emotional bonds between the parent and child. The “utmost
attention” should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re T.S.M., 71 A.3d at 267.
We have stated that, in conducting a bonding analysis, the court is not
required to use expert testimony, but may rely on the testimony of social
workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.
2010); see also In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008) (stating
that although it is often wise to have a bonding evaluation and make it part
of the certified record, “[t]here are some instances … where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.”). There is no bond
worth preserving between a child and a natural parent where the child has
been in foster care for most of the child’s life, and the resulting bond with
the natural parent is attenuated. In re K.Z.S., 946 A.2d at 764. It is
appropriate to consider a child’s bond with his or her foster parent(s). See
In re T.S.M., 71 A.3d at 268.
“[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 [the child’s] potential
in a permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d 847,
856 (Pa. Super. 2004). “[W]e will not toll the well-being and permanency of
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[a child] indefinitely.” In re Adoption of C.L.G., 956 A.2d at 1007 (citing
In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that a child’s life
“simply cannot be put on hold in the hope that [a parent] will summon the
ability to handle the responsibilities of parenting.”)).
The trial court set forth in its Opinion its reasons for determining that
termination of Mother’s parental rights was warranted under section
2511(b). See Trial Court Opinion, 2/27/17, at 7. As the record supports the
trial court’s factual findings, and we agree with its determination, we affirm
on this basis as to Mother’s fourth and final issue. See id.; see also In re
K.Z.S., 946 A.2d at 763-64 (affirming the involuntary termination of the
mother’s parental rights, despite the existence of some bond, where
placement with the mother would have been contrary to the child’s best
interests, and any bond with the mother would have been fairly attenuated
when the child was separated from her, almost constantly, for four years).
Based upon the foregoing, we affirm the Orders terminating Mother’s
parental rights under section 2511(a)(1) and (b), and changing the
Children’s permanency goals to adoption.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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