In the Interest of D.M. minors Appeal of P.M ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.M., S.S. AND IN THE SUPERIOR COURT OF
M.M., MINORS PENNSYLVANIA
APPEAL OF: P.M., MOTHER
No. 665 WDA 2015
Appeal from the Order Entered April 1, 2015
in the Court of Common Pleas of Allegheny County
Family Court at No.: TPR 111 of 2013
IN THE INTEREST OF: D.M., S.S. AND IN THE SUPERIOR COURT OF
M.M., MINORS PENNSYLVANIA
APPEAL OF: P.M., MOTHER
No. 666 WDA 2015
Appeal from the Order Entered April 1, 2015
in the Court of Common Pleas of Allegheny County
Family Court at No.: TPR 113 of 2013
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IN THE INTEREST OF: D.M., S.S. AND IN THE SUPERIOR COURT OF
M.M., MINORS PENNSYLVANIA
APPEAL OF: P.M., MOTHER
No. 667 WDA 2015
Appeal from the Order Entered April 1, 2015
in the Court of Common Pleas of Allegheny County
Civil Division at No.: TPR 112 of 2013
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 29, 2015
In these consolidated appeals,1 P.M. (Mother) appeals the orders of
the Court of Common Pleas of Allegheny County, entered April 1, 2015, that
terminated her parental rights to her son, D.M., born in October of 2006, her
daughter, M.M., born in March of 2005, and her daughter S.S., born in
November of 2010 (Children). We affirm.2
Allegheny County Office of Children, Youth and Families (CYF) first
became involved with this family in January of 2006. At that time, CYF
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*
Retired Senior Judge assigned to the Superior Court.
1
This Court consolidated these appeals, sua sponte, on May 22, 2015.
2
The trial court also terminated the parental rights of D.M.’s father, W.L.,
M.M.’s father, A.G., and S.S.’ father, T.S., as well as each Child’s unknown
father. None of these individuals has filed an appeal.
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received reports of inadequate housing, medical neglect, and physical abuse
of the Children by Mother. The agency received another referral in July of
2006 for similar issues and a report that the utilities where the family was
living had been shut off. Mother worked with In-Home Services (IHS) during
this time while the Children remained in the home. CYF received
subsequent, similar referrals in November of 2007, April of 2008, July of
2008, January of 2009, February of 2009, July of 2009, August of 2009, and
January of 2010. Mother was incarcerated on a number of occasions during
this period.
CYF developed a Family Service Plan (FSP) in 2008 that set Mother’s
goals as: (1) obtain stable housing; (2) attend parenting classes; (3)
address her mental health; (4) address the Children’s medical needs; and
(5) learn to live within a budget.
CYF received a referral in February of 2011 that Mother was living in a
friend’s basement with the Children and T.S., the father of S.S. CYF
implemented IHS at a crisis level and was able to assist Mother in finding
housing in March of 2011.
Mother was incarcerated again in April of 2011 and the Children were
left in the care of T.S.3 T.S. left two of the children, D.M. and M.M., with
Maternal Grandmother a few weeks later and continued to care for S.S.
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3
Mother was sentenced to serve not less than eighteen months nor more
than thirty-six months in a state correctional facility.
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Upon learning of this, CYF filed dependency petitions for all three of the
Children. The trial court adjudicated D.M. and M.M. dependent on July 6,
2011. The dependency for S.S. was continued because she was in T.S.’ care
and deemed to be in stable housing. S.S. was removed from T.S.’ care two
weeks later; the trial court adjudicated her dependent in August of 2011.
S.S. remained in foster care until placed in the care of Maternal
Grandmother in January of 2012.
New goals were implemented for Mother in 2011 that included
maintaining contact with CYF and other service providers, attending
parenting classes, securing housing, properly supervising the Children,
seeking mental health treatment, pursuing visitation, meeting the Children’s
education and medical needs, maintaining recovery from substance abuse,
completing an anger management course, and following all
recommendations. Mother was able to complete some programs and visit
with the Children during her incarceration.4
Mother was released to a halfway house in September of 2012, and
back into the community in October of 2012. When Mother was released
back into the community, she began to visit with the Children at Maternal
Grandmother’s home. After a short period of weekly visits, Mother began to
appear at the home on a daily basis and the visits had to be moved to the
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4
We find nothing in the record to indicate that Mother’s incarceration, in and
of itself, contributed to her inability or refusal to parent the Children.
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CYF office. Regular visits occurred until December of 2013, at which time
Mother was again incarcerated. She was released to Gateway Sheffield in
February of 2014 and began visiting the Children at that facility. Visits
resumed at the CYF office upon her release from that program in June of
2014. During these visits, Mother would talk about the case in front of the
Children and was often confrontational with staff. Mother has only attended
about half of her scheduled visits.
Psychologist, Neil Rosenblum, Ph.D., conducted evaluations of the
family in 2011, 2012, 2013, and 2014. In the 2011 evaluations, Dr.
Rosenblum noted that the Children appeared to have a good relationship
with Maternal Grandmother and her paramour and were comfortable in her
presence. The doctor noted that Maternal Grandmother had physical
limitations that affected her play with the Children but that she engaged in
play as much as she could. Dr. Rosenblum expressed concerns that M.M.
was often torn between Mother and Maternal Grandmother and exhibited
signs of deprivation and emotional insecurity. In the 2012 evaluations, Dr.
Rosenblum noted that M.M. was doing well in Maternal Grandmother’s care
and that S.S. appeared much more comfortable after being placed with
Maternal Grandmother. The subsequent evaluations did not reveal any new
or additional information and the Children continued to do well in Maternal
Grandmother’s home. At the final hearing in this matter, on February 6,
2015, Dr. Rosenblum testified:
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[M]y conclusions are that the [C]hildren have been in care
at the time of this evaluation three years now, closer to four
years. They have maintained stability, continuity of care. They
have developed healthy, constructive relationships with
[Maternal Grandmother and her paramour] and view them as
their psychological parent figures, as I just said.
In contrast, [Mother] was away for a year or more. I
forget exactly. But since her return to the community in the fall
of 2012, I see no ability on [M]other’s part to develop a more
constructive pattern of adjustment. She has not used mental
health counseling consistently, or to gain insight into the
problems, adjustment problems and lifestyle and behavior
difficulties which she continues to address at this time.
* * *
[The Children] need a sense of closure and ability to feel safe
on a long-term, permanent basis with where they are going to
reside and who they are going to look to as their parent figures.
I don’t have any confidence that [M]other is going to achieve a
more stable pattern of adjustment in the near future, for the
foreseeable future, and as a result, I would strongly recommend
that a goal change to adoption is consistent with the [C]hildren’s
needs and welfare.
(N.T. Hearing, 2/06/15, at 24-25).
CYF filed its petitions to terminate Mother’s parental rights on June 27,
2013. The trial court held hearings on those petitions on May 2, 2014, June
6, 2014, September 19, 2014, and February 6, 2015. The trial court
entered its orders terminating Mother’s parental rights, and the parental
rights of the Children’s fathers and unknown fathers, pursuant to 23
Pa.C.S.A. §§ 2511 (a)(2), (5), (8) and (b), on April 1, 2015. Mother filed
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her notices of appeal and statements of errors complained of on appeal on
April 28, 2015. See Pa.R.A.P. 1925(a)(2)(i).5
Mother raises the following questions on appeal:
I. Whether the [t]rial [c]ourt committed reversible error in
finding the Office of Children, Youth and Families met it’s [sic]
burden of proof and proved by clear and convincing evidence
that the parental rights of [Mother] should be terminated
pursuant to 23 Pa C.S.A. 2511(a)(1), (2), (5), and (8)?
II. Whether the [t]rial [c]ourt committed reversible error in
finding the Office of Children, Youth and Families met its burden
of proof and proved by clear and convincing evidence that the
parental rights of [Mother] should be terminated pursuant to 23
Pa C.S.A. 2511(b) and that said termination best meets the
needs and welfare of the children?
(Mother’s Brief, at 1).
Our standard of review 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
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:
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5
The trial court entered an opinion on June 2, 2015. See Pa.R.A.P.
1925(a).
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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)(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
(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
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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).
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) (citations and internal
quotation marks omitted). 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).
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In regard to incarcerated persons, our Supreme Court has stated:
[I]ncarceration is a factor, and indeed can be a
determinative factor, in a court’s conclusion that grounds for
termination exist under § 2511(a)(2) where the repeated and
continued incapacity of a parent due to incarceration has caused
the child to be without essential parental care, control or
subsistence and that the causes of the incapacity cannot or will
not be remedied.
* * *
[W]e now definitively hold that incarceration, while not a
litmus test for termination, can be determinative of the question
of whether a parent is incapable of providing “essential parental
care, control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether
“the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent,” sufficient
to provide grounds for termination pursuant to 23 Pa.C.S. §
2511(a)(2). If a court finds grounds for termination under
subsection (a)(2), a court must determine whether termination
is in the best interests of the child, considering the
developmental, physical, and emotional needs and welfare of the
child pursuant to § 2511(b). In this regard, trial courts must
carefully review the individual circumstances for every child to
determine, inter alia, how a parent’s incarceration will factor into
an assessment of the child’s best interest.
In re Adoption of S.P., 47 A.3d 817, 828, 830-31 (Pa. 2012) (case
citations 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
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A.2d 48, 485 (Pa. 1993). However, this Court has held that the trial court is
not required by statute or precedent to order a formal bonding evaluation
performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.
Super. 2008).
In her brief, Mother first argues, “[Mother] maintains that [CYF] failed
to provide reasonable services to Mother to assist in her reunification with
her children.” (Mother’s Brief, at 3; see id. at 5-9). Mother’s claim lacks
merit because nothing in our law required CYF to provide “reasonable
services” to Mother.
In In the Interest of D.C.D., our Supreme Court stated:
Neither Father nor the Superior Court point to any
Pennsylvania or federal provision that requires delaying
permanency for a child due to the failure of an agency to provide
reasonable services, when a court has otherwise held that
grounds for termination have been established and the court has
determined that termination is in the best interests of the child
by clear and convincing evidence. Accordingly, we conclude that
the Superior Court erred in reversing the trial court’s termination
of Father’s parental rights as a result of CYS’s failure to provide
reasonable efforts to enable Father to reunify with Child.
In the Interest of D.C.D., 105 A.3d 662, 676 (Pa. 2014).
In the case before us, the trial court has determined that CYF has met
its burden of demonstrating that Mother’s parental rights should be
terminated pursuant to section (a). Thus, our focus must be on whether the
record in this case supports the trial court’s determination, and not on the
services CYF provided to Mother. We quote the trial court’s analysis of
section (a) with approval:
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With regard to grounds under § 2511([a]) the [C]hildren
have been out of Mother’s care for a period in excess of 12
months at the time the TPR Petition was filed. All of the
conditions that existed at the time of removal continue to exist.
During Dr. Rosenblum’s evaluations of Mother, she was
confrontational and did not take ownership of her problems. She
admitted that she needed to address her issues with housing and
employment but focused most of her energy complaining about
the caseworker and [Maternal Grandmother]. He ultimately
opined that the [C]hildren have not relied on [Mother] to meet
their needs for some time. Mother has consistently articulated
that the [C]hildren should never have been removed from her
care and projected blame for this onto both the caseworker and
[Maternal Grandmother]. It was the opinion of Dr. Rosenblum
that Mother had not made any meaningful progress since the
case had been opened, that her behavior had not changed, she
had failed to attend mental health treatment, had been arrested
on new criminal charges and consistently displayed patterns of
anger, defensiveness, projection of blame and has refused to
take responsibility for her actions. Mother’s failure to attend
treatment consistently has prevented her from gaining any
insight into the issues that caused [the C]hildren to come into
care.
Mother has made limited progress on her FSP goals and
her only substantial periods of compliance occurred while she
was incarcerated. She did complete some parenting and anger
management classes. To her credit, Mother has always
maintained contact with [CYF] and attended court hearings, but
her visits never went to unsupervised due to her lack of
progress. The issues that have kept the case open for the last
several years have been Mother’s mental health and her lack of
progress on her goals while in the community. Her behavior at
visits and in front of the [C]hildren has been a constant concern.
She has had frequent outbursts and has spoken negatively about
Maternal Grandmother on numerous occasions to the [C]hildren.
She has engaged in verbal altercations with Grandmother and
has accused her of not taking care of the [C]hildren in an
appropriate manner. Stable housing has also been a concern
throughout the history of the case. Mother has moved in excess
of eight times since 2011. None of these residences have ever
been acceptable for the return of the [C]hildren.
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The [c]ourt has recognized that a child’s life cannot be held
in abeyance while the parent is unable to perform the actions
necessary to assume parenting responsibilities. The [c]ourt
cannot and will not subordinate indefinitely a child’s need for
permanence and stability to a parent’s claim of progress and
hope for the future. Mother has done little to remedy the
conditions which brought the [C]hildren into care. [The
C]hildren have been continuously exposed to conflict and
animosity between Mother and [Maternal] Grandmother over
their care. Mother has minimized her lack of progress and
instead focused on [Maternal] Grandmother’s lack of hair styling
experience. She has complained repeatedly that the [C]hildren’s
hair and clothing were not up to her standards. She has
confronted both [Maternal] Grandmother and the case worker
about it on numerous occasions. She has complained about it at
nearly every hearing. This is indicative of Mother’s inability to
take ownership of the reasons why the [C]hildren were taken
into care. She has not put nearly as much energy into
progressing in her FSP goals. Mother has been incarcerated
several times for various convictions and parole violations. She
has never maintained stable housing or employment. It was the
opinion of Doctor Rosenblum that Mother would never be able to
achieve an extended period of stability and that termination
would best suit the needs and welfare of the [C]hildren.
(Trial Court Opinion, 6/02/15, at 6-7) (citation omitted).
Our examination of the record reveals that CYF presented clear and
convincing evidence that supports the trial court’s determination. Mother’s
first claim is without merit.
In her second issue, Mother challenges the trial court’s determination
that termination is in the best interests of the Children. (See Mother’s Brief,
at 10-26). She addresses the question of the best interests and welfare of
the Children by focusing primarily on such things as the way Maternal
Grandmother cares for the Children’s hair, Maternal Grandmother’s age, and
the quality of the relationship between herself and Maternal Grandmother.
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(See id. at 13, 18, 20-23). She does not explain how these issues affect
the best interests and welfare of the Children.
Dr. Rosenblum described Maternal Grandmother and her paramour as,
“the people [the Children] look to that meet their needs on a day in, day out
basis. I use the term some times that they are their psychological parents.”
(N.T. Hearing, 2/06/15, at 23). He concluded by opining:
[The Children] need a sense of closure and ability to feel
safe on a long-term, permanent basis with where they are going
to reside and who they are going to look to as their parent
figures. I don’t have any confidence that [M]other is going to
achieve a more stable pattern of adjustment in the near future,
for the foreseeable future, and as a result, I would strongly
recommend that a goal change to adoption is consistent with the
[C]hildren’s needs and welfare.
(Id. at 25).
Our examination of the record reveals that it supports the trial court’s
finding regarding the Children’s best interests and welfare:
The [C]hildren have adjusted well in [Maternal]
Grandmother’s care despite Mother’s behaviors but are surely in
need of a firm understanding that they will remain with
[Maternal] Grandmother and her paramour for the duration of
their childhood. The [C]hildren have built a primary attachment
with [Maternal] Grandmother and her paramour. The [C]hildren
have a strong bond with them and look to them for stability and
security. Termination best serves the developmental, physical
and emotional needs and welfare of the [C]hildren.
(Trial Ct. Op. at, at 7-8). Mother’s second claim is without merit.
Accordingly, for the reasons stated, we affirm the orders of the Court
of Common Pleas of Allegheny County that terminated Mother’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b).
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Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
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