In Re: Adoption of J.M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF J.M. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.T., BIOLOGICAL MOTHER No. 897 MDA 2015
Appeal from the Decree entered April 27, 2015,
in the Court of Common Pleas of Union County, Orphans’ Court
Division, at No(s): CP-60-OC-008061-2014
BEFORE: GANTMAN, P.J., OLSON, and PLATT*, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 05, 2015
Appellant, C.T., (hereinafter “Mother”) appeals from the decree dated
December 11, 2014, and entered on April 27, 2015, in the Court of Common
Pleas of Union County Orphans’ Court, terminating Mother’s parental rights
to J.M. (born in December 2004) (hereinafter “Child”).1 We affirm.
Since 2012, Lycoming County Children and Youth Services has been
involved with this family due to Mother’s neglect of the children,
homelessness, and mental health issues. Child has two half-sisters who
* Retired Senior Judge assigned to the Superior Court.
1
At the conclusion of the termination hearing on December 11, 2014, the
Honorable Michael H. Sholley directed Mother and Child’s father, J.B.
(hereinafter “Father”), to submit findings of fact and conclusions of law on or
before January 31, 2015. N.T. Hearing, 12/11/14, at 116-117. Mother and
Father filed their proposed findings of fact and conclusions of law on
February 2, 2015. The trial court then entered its decree, dated December
11, 2014, on April 27, 2015, terminating the parental rights of Mother and
Father to Child. Father is not a party to this appeal, nor has he filed a
separate appeal from the termination of his parental rights.
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were born in July 2008 and October 2010, respectively.2 Mother moved to
Union County in January 2014. On March 18, 2014, Lycoming County
Children and Youth Services notified Union County Children and Youth
Services (hereinafter “CYS”) that Mother relocated to Union County,
Pennsylvania. On April 1, 2014, CYS filed a dependency petition and sought
to remove Child from Mother’s home.
On May 27, 2014, following a dependency hearing, the trial court
adjudicated Child dependent and placed Child in foster care with foster
parents. On May 28, 2014, Mother signed a Child Permanency Plan
(hereinafter “CPP”). The CPP directed Mother to: (1) secure and maintain
stable housing; (2) work on establishing a healthy parent-child relationship;
(3) address Mother’s mental health issues; (4) provide for Child’s basic
needs; and, (5) obtain employment. The CPP further provided Mother
visitation with Child for no less than one hour for once a week. In June
2014, Mother relocated to Philadelphia. Mother appeared in person at both
the shelter care hearing and dependency hearing. Subsequent to that,
Mother failed to appear for three hearings.
On October 17, 2014, CYS filed a petition to involuntarily terminate
Mother’s parental rights to Child. On December 11, 2014, the trial court
held a hearing on the termination petition. Mother did not appear at the
2
On December 29, 2014, Mother’s parental rights to Child’s half-sisters were
terminated.
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termination hearing. Further, Mother did not appear at her prior, scheduled
sessions with the bonding evaluator, licensed psychologist Robert Meacham,
Ph.D.
The following individuals testified at the termination hearing: Dr.
Meacham; Crystal Minnier, a Lycoming County Children and Youth Services
caseworker; A.B., Child’s foster mother; and, Aimee Benfer, a Union County
CYS caseworker. On April 27, 2015, the trial court entered its decree
terminating Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), and (b).
On May 19, 2015, Mother timely filed a notice of appeal, along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Mother raises the following issues:
1. Should the [t]rial [c]ourt have denied termination and ruled
[CYS’s] petition under 23 Pa.C.S.A. section 2511(a)(1) failed
as there was no showing of a settled purpose to relinquish a
parental claim, and Mother’s contact with Child in May 2014
rebutted the notion of a refusal or failure to perform parental
duties within six months of the October 2014 filing?
2. Should the [t]rial [c]ourt have denied termination and ruled
[CYS’s] petition under 23 Pa.C.S.A. section 2511(a)(2) failed
as [CYS], in not conceding that Mother’s negative mental
health issues were a primary factor, and not offering any
other evidence as to the condition and cause of her negative
behavior, therefore, could not and did not state that the
conditions and causes of the alleged misbehavior could not or
would not be remedied as is required under the statute?
3. Should the [t]rial [c]ourt have denied termination and ruled
[CYS’s] petition under 23 Pa.C.S.A. section 2511(a)(5) failed
as [CYS’s] decision to refuse further offers of transportation
to Mother rendered their hands unclean and voided their
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argument that services reasonably available to a parent were
not likely to remedy conditions, as is noted under the
statute?
Mother’s Brief at 5.
Our standard of review regarding orders terminating parental rights is
as follows:
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). 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. 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. & 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., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, we
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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).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, we will focus on section 2511(a)(2).
Section 2511 provides, in relevant 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 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.
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We have stated:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)
(citations omitted).
Our Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.”[].
This Court has addressed incapacity sufficient for termination
under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent,
can seldom be more difficult than when termination is
based upon parental incapacity. The legislature,
however, in enacting the 1970 Adoption Act, concluded
that a parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to
perform the duties.
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986), quoting
In re: William L., 383 A.2d 1228, 1239 (Pa. 1978).
In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012).
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We find the following portion of the trial court’s opinion relevant to our
inquiry with regard to section 2511(a)(2).
[Mother] failed to maintain contact with [CYS] and failed to
provide accurate information regarding her housing, employment
status, or [her] mental health treatment. [Mother] failed to
show up for a mental health evaluation [with CYS], although she
did obtain one from Lycoming County. [Mother] would obtain
employment and then promptly lose her job for not showing up
to work.
[M]other’s contact with [CYS] has been sporadic since her
relocation to Philadelphia with the last contact being on October
16, 2014.
Although [M]other has attempted to maintain contact with her
daughters, she has not made any significant effort to maintain
contact with [C]hild. Her last visit with [C]hild was May 2, 2014.
The last telephone contact with [C]hild and [M]other was on
June 30, 2014. [] Mother failed to appear for parenting session
with Children and Youth or the Families Learning Together
program.
Essentially, [M]other has made absolutely no effort to maintain
any type of relationship with [C]hild nor has she made any effort
to comply with any of the requirements of the CPP.
Trial Court Opinion, 4/27/15, at 3-4.
Ms. Minnier testified that Mother “never made any progress in any
aspect of her situation.” N.T. Hearing, 12/11/14, at 34. Specifically, Ms.
Minnier testified that: Mother continues to be homeless and does not
participate in any of her parenting classes; Mother’s mental health issues
remain a concern, including auditory hallucinations and depression; and,
Mother never followed through with counseling. Id. at 34-36.
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Ms. Benfer testified that Mother did not complete her permanency plan
goals including: Mother did not provide Ms. Benfer with any information as
to her housing; Mother did not obtain housing free of health and safety
issues; Mother did not address her mental health needs or keep her mental
health appointments; Mother did not provide for Child’s basic needs; and,
Mother did not attend parenting sessions. Id. at 82-86. Ms. Benfer further
testified that Mother only had one visit with Child – on May 2, 2014.
The trial court found clear and convincing evidence in the record that
the repeated and continued incapacity, abuse, neglect or refusal of the
Mother had caused 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 Mother. Trial Court Opinion, 4/27/15, at 2-4.
This Court has stated that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A parent’s vow to
cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous. Id. at 340. Instantly, the evidence showed that Mother has
not made any effort to maintain any type of relationship with Child and
Mother has not made any effort to comply with any of the CPP requirements.
Trial Court Opinion, 4/27/15, at 4. The evidence also demonstrated that
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Mother’s continued incapacity, abuse, neglect or refusal to parent could not
or would not be remedied, despite CYS’s offering of reasonable efforts to
assist in her reunification with Child.
Mother’s argument regarding section 2511(a)(2) essentially asks this
Court to make credibility and weight determinations different from those of
the trial court. While Mother may claim to love Child, a parent’s own
feelings of love and affection for a child, alone, will not preclude termination
of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We
stated in In re Z.P., 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.” Id. at 1125. Rather, “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 his or her potential in a permanent, healthy, safe
environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
After our careful review of the record in this matter, we find that the
trial court’s credibility and weight determinations are supported by
competent evidence in the record. In re M.G., 855 A.2d at 73-74.
Accordingly, we find that the trial court’s determinations regarding section
2511(a)(2) are supported by sufficient, competent evidence in the record.
The trial court must also consider how terminating Mother’s parental
rights would affect the needs and welfare of Child pursuant to 23 Pa.C.S.A.
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§ 2511(b). Pursuant to section 2511(b), the trial court’s inquiry is
specifically directed to a consideration of whether termination of parental
rights would best serve the developmental, physical, and emotional needs of
the child. See In re C.M.S., 884 A.2d 1284, 1286-87 (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). We have instructed that 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. See id.
While Mother did not contest section 2511(b) on her appeal, we will
still review whether termination of parental rights would best serve the
developmental, physical, and emotional needs of Child. The trial court
found:
[C]hild has been placed in the pre-adoptive home of [the foster
parents]. [C]hild is thriving in this home and refers to his foster
parents as “Mom” and “Dad.” [Foster father] coached [C]hild in
football, a topic which [C]hild seems extremely proud of.
[C]hild’s two younger siblings are placed in the [foster parents’]
home and proceedings for the [foster parents] to adopt the
siblings are in progress. The [foster parents] have indicated a
desire to adopt [C]hild and have repeatedly demonstrated a
vested interest in [C]hild’s well-being.
[C]hild is improving substantially in school and socially. The
[trial c]ourt has had the opportunity to observe [C]hild in court
and has observed a close bond between [C]hild and the [foster
parents]. The relationship between [C]hild and the [foster
parents] is warm, affectionate, and encouraging. The [trial
c]ourt has had an opportunity to observe [C]hild with the [foster
parents’] biological son who is approximately the same age and
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the two engage freely and openly and appear to have already
formed a bond as siblings.
Trial Court Opinion, 4/27/15 at 4-5.
Dr. Meacham testified that Child “is doing well in the foster home” and
Child “views the foster family as his family.” N.T. Hearing, 12/11/14 at 13.
Ms. Minnier testified that the foster parents provide excellent care for Child,
and that Child is very comfortable and very happy with them. Id. at 38.
Ms. Benfer testified that Child has bonded with his foster parents, and that
Child refers to them as “mom and dad.” Id. at 80.
In the instant case, on the issue of bonding, our review of the record
reveals no evidence of a bond between Mother and Child. Dr. Meacham
testified that, when he talked to Child about Mother, “Child immediately
became glum.” Id. at 13. Ms. Benfer testified that she witnessed Mother
and Child’s one visit together, and testified that the visit was “like watching
two friends play.” Id. at 97. Ms. Benfer also testified that Mother did not
exhibit that she missed Child. Id. at 98. Dr. Meacham testified that Child
knows who Mother is, but Child is disappointed that Mother is not active in
Child’s life. Id. at 25. Moreover, Dr. Meacham testified that re-introducing
Mother into Child’s life would have a traumatic impact on Child, and would
put Child’s “relationships in life in a very tenuous hold.” Id. at 25-26. We
have stated, “[i]n cases where there is no evidence of any bond between the
parent and child, it is reasonable to infer that no bond exists.” In re K.Z.S.,
946 A.2d 753, 763 (Pa. Super. 2008).
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After this Court’s careful review of the record, we find that the
competent evidence in the record supports the trial court’s determination
that there is no bond between Mother and Child which, if severed, would be
detrimental to Child, and that the termination of Mother’s parental rights
would best serve the needs and welfare of Child. Thus, we will not disturb
the trial court’s determinations. See In re M.G., 855 A.2d at 73-74.
After a careful review, we affirm the decree terminating Mother’s
parental rights on the basis of section 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2015
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