In the Interest of: K.C.H., a Minor ( 2017 )

J-S44002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.C.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.T., MOTHER
No. 3796 EDA 2016
Appeal from the Decree Entered December 1, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0001066
CP-51-DP-0002641-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 29, 2017
J.T. (“Mother”) appeals from the decree entered December 1, 2016,
that granted the petition filed by the Philadelphia County Department of
Human Services, Children and Youth Division (“DHS”) to involuntarily
terminate her parental rights to her minor child, K.C.H. (“Child”) (born in
September of 2013), pursuant to sections 2511(a)(1), (2), (5), (8), and (b)
of the Adoption Act, 23 Pa.C.S. §§ 2101-2938. After careful review of the
record and applicable law, we affirm.
The trial court set forth the following summary of the factual and
procedural background of this case in its Pa.R.A.P. 1925(a) opinion:
On October 2, 2015, [DHS] received a General Protective Service
(GPS) report alleging Mother abandoned [Child] with his paternal
great-grandmother on September 28, 2015. Maternal aunt was
contacted on September 30, 2015[,] to care for [Child], where
he remained in her care. There were growing concerns, since
[the] summer of 2015, regarding Mother[’s] leaving [Child] with
maternal aunt or paternal great-grandmother for extended
periods of time with no contact. The report alleged [that]
maternal aunt visited Mother’s home and the building appeared
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to be abandoned. The report further stated Mother suffered
from schizophrenia and was not receiving treatment nor taking
medication. Mother reportedly used drugs. [Child’s] sibling had
been previously placed with DHS. Mother was pregnant with
twins. The report was determined to be valid.
DHS learned on October 1, 2015, Mother was violent and caused
damage to the homes of paternal great-grandmother and
maternal aunt when she attempted to retrieve [Child].
On October 5, 2015, DHS visited the home of maternal aunt and
found the allegations of damage to be valid.
On October 5, 2015, DHS obtained an Order of Protective
Custody (OPC) for [Child] to ensure his safety. [Child] remained
in the home of maternal aunt.
A Shelter Care Hearing for [Child] was held on October 7, 2015.
The [c]ourt ordered the OPC lifted and the temporary
commitment to stand. DHS was ordered to make a referral for
kinship care services.
At that time[,] Mother’s whereabouts were unknown to DHS.
Father was incarcerated at the Detention Center (DC) on charges
related to domestic violence.
On October 15, 2015, an Adjudicatory Hearing for [Child] was
held before the Honorable Vincent L. Johnson, who discharged
the temporary commitment, adjudicated [Child] dependent, and
committed him to DHS.
On October 15, 2015, an Aggravated Circumstances hearing for
[Child] was held. The [c]ourt determined that aggravated
circumstances exited [sic] as to Mother[,] pursuant to the
involuntary termination of her parental rights of [Child’s] sibling
on March 4, 2015. The [c]ourt also found aggravated
circumstances existed as a result of sibling who was the victim of
physical abuse resulting in serious bodily injury, sexual violence,
and aggravated neglect by Mother. The [c]ourt acted pursuant
to Mother’s admission of guilt to the charges of felony
aggravated assault and endangering the welfare of children. The
[c]ourt ordered that efforts continue to be made to preserve the
family and reunify [Child] with Mother.
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On January 4, 2016 and March 28, 2016, Permanency Review
Hearings for [Child] were held. [Child] remained committed to
DHS custody.
On May 3, 2016, a Permanency Review Hearing was held for
[Child] … before the Honorable Richard J. Gordon, who ordered
[Child] remain committed to DHS. Judge Gordon ordered [Child]
be referred to BHS for a consultation and evaluation. Mother
and Father were referred to the Achieving Reunification Center
(ARC). Mother and Father were granted supervised visits as
arranged by the parties.
On May 13, 2016, Mother gave birth to [Child’s] sibling.
On May 14, 2016, DHS received a GPS report which alleged on
May 13, 2016, Mother gave birth to [Child’s] sibling and was
expected to be discharged from Hospital of the University of
Pennsylvania (HUP) on May 15, 2016. Mother lacked stable
housing and was involved with the Family Shelter Support Team
(FaSST) Connections for assistance with obtaining housing and
other social support. The report further alleged Mother was
unemployed. Mother was diagnosed with bipolar disorder,
depression and anxiety. Mother was assigned a therapist and a
psychiatrist and received treatment at John F. Kennedy (JFK)
Behavioral Health Center. Mother was scheduled to resume
mental health treatment on May 17, 2016. The report also
stated Mother had been incarcerated for assaulting a child. The
report was determined to be valid.
On May 16, 2016, DHS visited [Child’s] sibling at HUP and
learned she was healthy. DHS contacted Mother who provided
names and contact information for possible placement resources
for [Child’s] sibling. Mother stated she was in the process of
obtaining housing.
On May 16, 2016, DHS obtained an OPC for [Child’s] sibling and
placed her in the care of her maternal cousin, where she
remained.
A Shelter Care Hearing for [Child’s] sibling on May 19, 2016[,]
was held before [the] Honorable Lyris F. Younge. The [c]ourt
lifted the OPC and ordered the temporary commitment to DHS to
stand. Judge Younge further ordered Mother to have liberal
supervised visits with [Child’s] sibling in maternal cousin’s home.
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On May 25, 2016, an Adjudicatory Hearing for [Child’s] sibling
was held before Judge Younge[.] Judge Younge discharged the
temporary commitment to DHS, adjudicated [Child’s] sibling
dependent, and committed [him] to DHS. Judge Younge ordered
Mother to visit Clinical Evaluation Unit (CEU) for a full drug and
alcohol screen, a dual-diagnosis assessment and monitoring.
Mother was granted weekly supervised visits at the agency.
Mother was ordered to contact the agency 24 hours in advance
of Mother’s intended visit or the visit would be cancelled.
On May 25, 2016, Judge Younge found that aggravated
circumstances existed as to Mother but held the decision
pursuant to efforts made toward reunification in abeyance.
On June 22, 2016, a Permanency Review Hearing for [Child’s]
sibling was held before Judge Younge, who ordered that [Child’s]
sibling remain committed to DHS. Judge Younge suspended
Mother’s visitation, and ordered that no further efforts need be
made to reunify [Child’s] sibling with Mother.
On July 25, 2016, a Permanency Review Hearing for [Child] and
[Child’s] sibling was held before Judge Younge. Mother was
referred to Achieving Reunification Center (ARC) … for
services[;] however[,] [she] was discharged for lack of
participation. Mother failed to comply with her referral to CEU
for drug and alcohol testing and assessment. Judge Younge
ordered [Child] and [Child’s] sibling remain committed to DHS.
The matter was … listed on a regular basis before [j]udges of the
Philadelphia Court of Common Pleas, Family Court Division –
Juvenile Branch[,] pursuant to section 6351 of the Juvenile Act,
42 Pa.C.S.[] § 6351, and evaluated for the purpose of reviewing
the permanency plan of [Child].
In subsequent hearings, the Dependency Review Orders reflect
the [c]ourt’s review and disposition as a result of evidence
presented, primarily with the goal of finalizing the permanency
plan.
On December 1, 2016, during the Termination of Parental Rights
Hearing for [Child], the [c]ourt found by clear and convincing
evidence that Mother’s parental rights as to [Child] should be
terminated pursuant to the Juvenile Act. Furthermore, the
[c]ourt held it was in the best interest of [Child] that the goal be
changed to [a]doption.
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Trial Court Opinion (“TCO”), 4/5/17, at 1-3.
On December 8, 2016, Mother filed a timely notice of appeal, along
with a timely Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. In her brief, Mother presents 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.[] [§] 2511(a)(1)[,] where [M]other presented
evidence that she substantially met her [Family Service Plan
(“FSP”)] goals and is able to perform her parental duties[?]
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Mother], pursuant to 23
Pa.C.S.[] [§] 2511(a)(2)[,] where [M]other presented
evidence that she has remedied her situation by attending
parenting and anger management classes, and continuing to
receive mental health treatment[?] Mother 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.[] [§] 2511(a)(5)[,] where evidence was provided to
establish that [Child] was removed from the care of his
mother, and that [M]other is now capable of caring for her
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.[] [§] 2511(a)(8)[,] where evidence was presented to
show that [M]other is now capable of caring for her child
since she has completed parenting and anger management
and continues her 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.[] [§] 2511(b)[,] where evidence was presented that
established [Child] lived [with] [M]other and had a parental
bond with [M]other[?]
Mother’s Brief at 7.
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We review an appeal from the termination of parental rights under 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.; 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 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
record and the court’s legal conclusions are not 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).
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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. In re S.H., 879 A.2d 802, 806 (Pa.
Super. 2005). We have 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., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation
marks omitted).
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
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 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 interest 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. § 2511;
other citations omitted).
This Court must agree with only one subsection of 2511(a), in addition
to section 2511(b), in order to affirm the termination of parental rights. See
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In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Herein, we
review the decree pursuant to sections 2511(a)(1) and (b), which provide 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:
(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. § 2511(a)(1) and (b).
As we addressed the application of section 2511(a)(1) in In re C.M.S.,
832 A.2d 457, 461 (Pa. Super. 2003), we noted:
To satisfy 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.
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Id. (quoting Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91
(Pa. 1998)). In C.M.S., we further acknowledged the following statement by
our Supreme Court:
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[.’]
C.M.S., 832 A.2d at 462 (quoting In re Burns, 379 A.2d 535, 540 (Pa.
1977)).
Contrary to what the record reflects, Mother avers that she
substantially complied with all of her FSP goals and suggests that she has a
bond with Child which is evidenced by her continued visitation with Child.
Mother’s Brief at 10, 15. However, Mother’s own testimony at the
termination hearing revealed that, over the course of the prior year, she
missed more than half of her scheduled supervised visits. N.T. Hearing,
12/1/17, at 66. Moreover, despite Mother’s assertion that she has attended
parenting, domestic violence, and anger management programs and that
she continues with her mental health treatment, the court determined that
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Mother’s treatment has been inconsistent. Id. at 106. The court added,
“Even though [Mother] has had some treatment and may have made some
form of progress, [Mother] is still having to deal with issues where she’s
showing aggression, she’s busting out windows … [T]hat’s not appropriate
behavior, and it raises a safety concern as to whether … [Child] would be
safe in the care of [Mother].” Id.
In further support of its finding that Mother failed to perform her
parental duties, which established grounds for termination under 23 Pa.C.S.
§ 2511(a)(1), the trial court stated:
[T]he social worker testified Mother had a history of domestic
violence issues and physical abuse of a child. The [c]ourt took
judicial notice of a finding of Aggravated Circumstances in
October [of] 2015, based on involuntary termination of a prior
child who was the victim of serious bodily injury, sexual violence,
and aggravated neglect by Mother. The [c]ourt also took judicial
notice of orders for suspension of Mother’s visitation of another
child due to concerns for the child[’s] safety as a result of the
aggravated circumstances finding. The social worker did not feel
it was appropriate to modify Mother’s visits with [Child] to
unsupervised visits. Testimony of the social worker revealed
Mother’s visits with [Child] did not expand due to Mother’s
failure to be compliant with her Single Case Plan (SCP)
objectives. According to [the] social worker’s testimony, Mother
had failed to show consistency in mental health treatment and
failed to complete anger management classes. Furthermore,
[the] social worker’s testimony revealed she believed [Child]
would be at risk for harm and danger if reunification with Mother
occurred.
A parent has an affirmative duty to act in her children’s best
interest. “Parental duty requires that the parent not yield to
every problem, but must act affirmatively, with good faith
interest and effort, to maintain the parent-child relationship to
the best of his or her ability, even in difficult circumstances.” In
re Dale A., II, 683 A.2d 297, 302 (Pa. Super. 1996). In
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reference to the parental contact, “to be legally significant, the
contact must be steady and consistent over a period of time,
contribute to the psychological health of the child, and must
demonstrate a serious intent on the part of the parent to
recultivate a parent-child relationship, and must demonstrate
and [sic] willingness and capacity to undertake the parenting
role.” In re D.J.S., 737 A[.]2d 283, 286 (Pa. Super. 1999)
(quoting In re Adoption of Hamilton, 549 A.2d 1291, 1295
(Pa. Super. 1988)).
In the present matter, [Child] had been in DHS care for fourteen
(14) months. Testimony revealed Mother admitted to acts of
domestic violence in July of 2016[,] while engaged in domestic
violence therapy and counseling. The social worker testified
there were ongoing concerns about Mother’s mental health
stability. A Clinical Evaluation Report (CEU) provided to the
[c]ourt stated Mother tested positive for drugs twice in July [of]
2016.
TCO at 4-5 (citations to record omitted). After careful review, we discern
that the court’s determinations are well-supported by the record.
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of subsection (b)
are met. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.
2008) (en banc). This Court has stated that 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). Id. at 1008.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows:
[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. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “intangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
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791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
1992)], this Court held that the determination of the 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 251, 267 (Pa. 2013).
Here, Mother merely provides that she lived with Child for over a year
and that she continues to visit with Child when permitted, in support of her
argument that termination of her parental rights does not serve Child’s
physical and emotional needs and welfare. See Mother’s Brief at 18. The
record clearly belies Mother’s claim.
At the termination hearing, DHS testified that Child has been
diagnosed with adjustment disorder and is receiving trauma-focused play
therapy, “due to a history of exposure to domestic violence and potential
concerns regarding separation anxiety from the kinship caregiver[.]” N.T.
Hearing at 59. DHS indicated that Child suffers from the following
potentially trauma-related symptoms: “outbursts when the caregiver leaves
him, staring off into space, physical aggression, intrusive memories,
difficulty sleeping, and some other behavior.” Id.The trial court concluded:
In the instant matter, the testimony of [the] social worker
established that [Child] would not suffer any irreparable
emotional harm if Mother’s parental rights were terminated.
Testimony of the social worker stated [Child] had positive
interaction and bonded with his caregiver. The social worker
testified [that] [Child’s] caregiver has been successful in
behavioral management of [Child]. Furthermore, testimony
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established that [Child’s] stability would be disrupted if [Child]
was removed from the caregiver’s home.
The [c]ourt found the social worker’s testimony [regarding]
Mother to be credible and effectively detailed.
TCO at 6 (citations to record omitted).
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Child’s needs and
welfare, and the absence of any bond with Mother, we conclude that the
court did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d
at 826-27. Accordingly, we affirm the decree terminating Mother’s parental
rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2017
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