In the Interest of: H.R.N., a Minor ( 2018 )

J-S17031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: IN THE SUPERIOR COURT
H.R.N., A MINOR OF
PENNSYLVANIA
APPEAL OF: K.M.T., MOTHER
No. 2889 EDA 2017
Appeal from the Order entered August 7, 2017,
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000711-2017.
IN THE INTEREST OF: IN THE SUPERIOR COURT
R.R.N., A MINOR OF
PENNSYLVANIA
APPEAL OF: K.M.T., MOTHER
No. 2891 EDA 2017
Appeal from the Order entered August 7, 2017,
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000517-2017.
IN THE INTEREST OF: IN THE SUPERIOR COURT
G.N., A MINOR OF
PENNSYLVANIA
J-S17031-18
APPEAL OF: K.M.T., MOTHER
No. 2894 EDA 2017
Appeal from the Order entered August 7, 2017,
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000518-2017
IN THE INTEREST OF: IN THE SUPERIOR COURT
L.R.N., A MINOR OF
PENNSYLVANIA
APPEAL OF: K.M.T., MOTHER
No. 2897 EDA 2017
Appeal from the Order entered August 7, 2017,
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000519-2017.
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 30, 2018
K.M.T. (“Mother”) appeals from the orders terminating her parental
rights to her four children: L.R.N. (11 years old); G.N. (9 years old); R.R.N.
(3 years old); and H.R.N. (3 months old).1 Her rights to her older three
children – L.R.N., G.N., and R.R.N. – were terminated pursuant to 23 Pa.C.S.A.
§2511(a) (1), (2), (5), (8) and (b). Mother’s rights to her youngest, H.R.N.,
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1Ge.N, Father, also appeals, but his case is before a separate panel of this
Court. See 2824, 2826, 2827, 2828, EDA 2017.
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were terminated pursuant to 23 Pa.C.S.A. §2511(a) (1), (2), (4), (5), (8) and
(b). After careful review, we affirm as to the three eldest children, but reverse
as to H.R.N.
The relevant facts and procedural history of this case are extensive, but
they may be summarized as follows. The parties first came to the attention
of the Department of Human Services (“DHS”) in November 2009. Mother
had taken L.R.N. to the hospital, alleging Father physically abused the child.
The hospital found no evidence of physical abuse and the child was released
the same day. At the hospital, however, Mother appeared to be under the
influence of an unknown substance. Some combination of these two facts
precipitated DHS involvement. Soon thereafter, DHS confirmed that Mother
was prescribed Seroquel and Methadone. DHS developed a Safety Plan to
relocate Mother and her children (L.R.N. and G.N.) to the Eliza Shirley Red
Shield shelter. The family was discharged two weeks later in December 2009
when Mother and the children failed to return to the shelter. Mother took the
children to DHS. After Mother tested positive for benzodiazepines, DHS
created a new safety plan where the maternal grandparents would serve as
caregivers to L.R.N. and G.N. In late December 2009, Mother was arrested
for shoplifting. At that point, DHS obtained a protective custody order for the
children, who remained in the care of their maternal grandparents.
In January 2010, the juvenile court adjudicated the children dependent.
Father was ordered to undergo a drug and alcohol screen and a dual diagnosis
assessment; the court found Mother received inpatient treatment at My
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Sister’s Place, where she was residing. The children joined Mother soon
thereafter.
In June 2010, the children were again removed to the care of the
maternal grandparents. Over the next year and a half, the juvenile court
found the parents to be minimally compliant with their reunification goals.
The parents eventually complied with the permanency plan, however; and in
late December 2011, the children were reunified with their parents. The
dependency case was then closed for nearly three years.
In November 2014, DHS received a report alleging that the parents left
then-6-year-old G.N. and then-8-month-old R.R.N in the care of the eldest
child L.R.N., who was 8 years old. A subsequent investigation revealed that
Mother and Father were abusing OxyContin, Percocet, Klonopin and Xanax.
There was limited food in the home. The home was dirty and cluttered with
trash, thereby creating a fire hazard. The parents were also selling their food
stamps, and asking neighbors for food and baby formula. L.R.N. was suffering
from asthma; G.N. had Attention-Deficient Hyperactivity Disorder.
Although the children remained in the home, DHS discovered a number
of concerns over the following year. Mother failed to provide the results of
her drug tests to DHS’ service providers. Mother reported that armed
neighborhood men had threatened to kill her family. Mother failed to enroll
in mental health treatment. A DHS service provider had to assist Mother by
transporting her and the children to their dental appointments; the two older
children had 23 cavities between them. Mother did not ensure G.N. received
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his daily medication. During home visits, a service provider suspected Mother
was under the influence. Mother was diagnosed with multi-personality
disorder and bipolar disorder. The children were eventually adjudicated
dependent for the second time in December 2015.
At the ensuing permanency review hearing in March 2016, Mother
appeared to be under the influence. Her lack of compliance with drug screens
led to the children being placed out of her care. Mother’s compliance with
DHS’ Single Case Plan was minimal throughout the following year. In April
2017 Mother gave birth to H.R.N.; Mother had no prenatal care and DHS was
evidently unaware she was pregnant. The new baby had low scores on the
Appearance, Pulse, Grimace, Activity Respiration (APGAR) scale. Although
she previously had been prescribed Suboxone, Mother was purchasing and
using the drug illegally at that time. The baby was treated at the hospital for
Suboxone withdrawal symptoms. Upon her release from the hospital, H.R.N.
was placed in the care of a maternal aunt. H.R.N. was adjudicated dependent
on May 11, 2017. DHS filed its petition to terminate the parents’ rights as to
the three eldest children on May 5, 2017; H.R.N.’s petition was filed on July
11, 2017. On July 13, 2017 the three oldest children transitioned from their
placement with maternal relatives to their pre-adoptive placement with
paternal aunt. It appears the baby, H.R.N., remained with a maternal aunt,
but was also in the processing of transitioning to the same paternal aunt.
On August 7, 2017, the trial court terminated Mother’s rights in the
following manner: As to L.R.N., G.N., and R.R.N., Mother’s rights were
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terminated as to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). As to H.R.N.,
Mother’s rights were terminated as to 23 Pa.C.S.A. § 2511(a)(1), (2), (4), (5),
and (8).
In her brief, Mother submits to us two questions:
1. Did DHS sustain the burden that Mother's rights should
be terminated when there was evidence that Mother had
completed and/or had been actively completing her
permanency goals?
2. Was there sufficient evidence presented to establish that
it was in the best interests of the child to terminate
Mother’s parental rights?
Mother’s Brief, at 4.
Our standard of review regarding orders terminating parental rights is
settled:
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:
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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 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).
The termination of parental rights is controlled by 23 Pa.C.S. § 2511.
Under this statute, the trial court must engage in a bifurcated process in which
it initially focuses on the conduct of the parent under Section 2511(a). See In
the Interest of B.C., 36 A.3d 601 (Pa.Super.2012).
In this case, the trial court terminated Mother’s parental rights pursuant
to Sections 2511(a)(1), (2), (4), (5), (8) 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.
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
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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.
....
(4) The child is in the custody of an agency, having been
found under such circumstances that the identity or
whereabouts of the parent is unknown and cannot be
ascertained by diligent search and the parent does not claim
the child within three months after the child is found.[2]
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency
for a period of at least six months, the conditions which led
to the removal or placement of the child continue to exist,
the parent cannot or will not remedy those conditions within
a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the parental rights would best serve the needs and welfare
of the child.
....
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
23 Pa.C.S.A. §§ 2511(a)(1), (2), (4), (5), (8). Additionally, this Court “need
only agree with [the trial court's] decision as to any one subsection in order
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2 23 Pa.C.S.A. § 2511(a)(4) was only found to be grounds for termination as
to H.R.N.
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to affirm the termination of parental rights.” In re B.L.W., 843 A.2d 380, 384
(Pa.Super.2004).
For clarity’s sake, we divide our discussion between the older three
children, whose terminations we affirm, and the youngest child, whose
termination we reverse.
We begin with the older three children: L.R.N.; G.N.; and R.R.N. Mother
argues that the trial court erred because she had either completed or was in
the process of completing her court-ordered reunification goals. But our
review of the testimony reveals that in the three years since the DHS case
was reopened, Mother’s compliance was minimal. See N.T., 8/7/17, at 32.
Mother did not provide any evidence that she complied with her drug
screening. In fact, Mother was caught trying to falsify a drug test when it was
discovered she brought a condom full of urine to the screen. Id., at 19.
Because Mother appeared to be under the influence during her visits with the
children, the court suspended the visits. Id., at 25; 34. Even after they
resumed, Mother’s lack of participation in the reunification process did not
warrant anything more than weekly, two-hour supervised visits. Id., at 44.
Mother could not provide the caseworker with documentation that she sought
mental health treatment. Mother testified that she is now employed as a
caretaker, hired by the brother of her elderly charge. Id., at 96. However,
that employment did not commence until July 1, 2017, around two months
after DHS filed its termination petition. Section 2511(b) provides that the
court may not consider any effort by the parent to remedy the conditions
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described in subsection (a)(8) if that remedy was initiated after the parent
was given notice that termination petition had been filed. 23 Pa.C.S.A.
§2511(b); see also In re D.W., 856 A.2d 1231, 1234 (Pa. Super. 2004).
While the trial court found that DHS met its burden of proof under each
of the four subsections of the termination statute referenced above, we can
affirm the termination if we agree with the decision of any one of those
subsections. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004). Here,
we agree with the trial court’s decision on subsection (a)(8).
In order to satisfy subsection 2511(a)(8), DHS must show the following
three elements: (1) that the child has been removed from the care of the
parent for at least twelve (12) months; (2) that the conditions which had led
to the removal or placement of the child still exist; and (3) that termination
of parental rights would best serve the needs and welfare of the child. 23
Pa.C.S.A. § 2511(a)(8). Termination under subsection 2511(a)(8) does not
require an evaluation of a parent's willingness or ability to remedy the
conditions that led to placement of his or her children. In re Adoption of
J.N.M., 177 A.3d 937, 943 (Pa. Super. 2018); see also In re M.A.B., 166
A.3d 434, 446 (Pa. Super. 2017).
Here, the court gave Mother several years to remedy the conditions that
led to the children’s repeated removals. The final removal occurred in March
2016; thus, the twelve month time period was satisfied. Despite DHS working
with her over many years, Mother failed to participate in any meaningful drug
or mental health treatment. Her visitations were suspended because of
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apparent drug use. The visits she had were supervised. At the time of the
termination, the conditions that led to these children’s removal still existed.
Finally, for the same reasons that will be discussed below regarding 2511 (b),
the trial court concluded that termination would best serve the children’s
needs and welfare. We agree.
Having established that section 2511(a)(8) was a proper ground for
terminating Mother’s parental rights, we must now determine whether
termination would serve the children’s needs and welfare under section
2511(b). See id.Section 2511(b) provides, in pertinent part:
(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.
23 Pa.C.S.A. § 2511(b).
Pursuant to Section 2511(b), the trial court must take into account
whether a natural parental bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial
relationship. In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.” In addition, we instructed that
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the orphans' 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. However, the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case. In re K.Z.S., 946 A.2d
753, 763 (Pa. Super. 2008).
While a parent's emotional bond with his or her child is a major aspect
of the Subsection 2511(b) best-interest analysis, it is nonetheless only one of
many factors to be considered by the court when determining what is in the
best interest of the child. The mere existence of an emotional bond does not
preclude the termination of parental rights. Rather, the orphans' court must
examine the status of the bond to determine whether its termination “would
destroy an existing, necessary and beneficial relationship.” As we explained
in In re N.A.M.:
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and should
also consider the intangibles, such as the love, comfort,
security, and stability the child might have with the foster
parent. Additionally, this Court stated that the trial court
should consider the importance of continuity of relationships
and whether any existing parent-child bond can be severed
without detrimental effects on the child.
33 A.3d 95, 103 (Pa. Super. 2011) (citing In re A.S., 11 A.3d 473, 483 (Pa.
Super. 2010). Moreover, we have found terminations to be proper despite
the existence of a parent-child bond when the bond is not necessarily
meaningful or healthy. In re M.M., 106 A.3d 114, 120 (Pa. Super. 2016);
see In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that the strong
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parent-child bond was an unhealthy one that could not by itself serve as
grounds to prolong foster care drift); see also In re L.M., 923 A.2d 505, 512
(Pa. Super. 2007) (holding that a parent's love of her child, alone, does not
preclude a termination).
Since their last removal in March 2016, the three eldest children largely
have been placed with family. At the time of the hearing, they had been
placed with their paternal aunt, who is their pre-adoptive foster parent. Prior
to that, they were with their maternal grandmother. Although there was no
bonding evaluation conducted between the children and their paternal aunt,
the aunt is someone the children know. Additionally, DHS caseworker testified
that the children have adjusted well in the home. N.T., 8/7/17, at 74. The
caseworker testified, and the trial court agreed, that although the two oldest
children, L.R.N. and G.N., are bonded with Mother, this bond is not beneficial
or necessary. The court also concluded that this bond is outweighed by the
children’s need for stability and safety. We agree. The children – especially
the oldest two children – have experienced a tumultuous childhood thus far.
DHS involvement began 9 years ago. Since then, Mother has never
maintained any prolonged sobriety. The children were removed multiple times
and have had to endure various placements. Moreover, Mother had often
neglected them to the point where their health suffered. When they finally
got to a dentist, two of the children had nearly two dozen cavities between
them. Apart from the physical effects of Mother’s neglect, their lack of
permanency could have long-term consequences on their mental health.
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The children currently suffer from mental health issues which Mother
has also failed to address; the social worker testified that Mother had not been
involved in G.N.’s behavioral medication management nor has she been
involved in his therapy. Because the children are placed with kin, we recognize
that they will likely continue to have some contact with Mother. This should
mitigate any adverse effect termination might have on the older children. See
In re M.M., 106 A.3d 114, 119-120 (Pa. Super. 2014). Additionally any
adverse effects are wholly outweighed by the benefits of adoption. We find
that the record supports termination of Mother’s parental rights as to L.R.N.,
G.N., and R.R.N. The needs and welfare of these three children will be served
by the termination of Mother’s parental rights.
With respect to the trial court’s decision to terminate Mother’s parental
rights to youngest child, H.R.N., we must reverse. Initially, we recognize that
the trial court’s termination under subsection (a)(4) may be based a clerical
error. Section 2511(a)(4) provides: “The child is in the custody of the agency,
having been found under such circumstances that the identity or whereabouts
of the parent is unknown and cannot be ascertained by diligent search and
the parent does not claim the child within three months after the child is
found.” This section does not apply to the facts of this case. Perhaps the
termination provision was included in DHS’s petition to terminate the parental
rights of the “Unknown Father.” See 23 Pa.C.S.A. § 2512(c) (“If the petition
does not identify the father of the child, it shall state whether a claim of
paternity has been filed under Section [5103] (relating to paternity)).
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Curiously, DHS sought – and the trial court granted – termination of the rights
of an unnamed father, despite the fact that Father acknowledged paternity of
H.R.N., and despite the fact that he and Mother were purportedly married at
the time of H.R.N.’s birth. We can surmise no other explanation for this finding
other than a clerical error. However, the law does not sever the parent-child
bond on this basis.
Similarly inappropriate are the court’s findings as to Sections
2511(a)(1), (5), and (8). Each of these provisions have timing requirements
before termination is appropriate; the statutory requisite timeframe outlined
for Sections 2511(a)(1) and (5) is six months, and for Section 2511(a)(8), it
is 12 months. At the time of the termination hearing, H.R.N. was only three
months old, and, thus, could only have been without parental care for a period
of approximately 3 months. We conclude that the trial court erred when it
terminated Mother’s parental rights to H.R. N. under these provisions. This
leaves only Section 2511(a)(2) as an appropriate ground for termination.
As we stated above, if we were to conclude that Section 2511(a)(2) is a
suitable ground for termination, we could affirm the trial court’s decision to
terminate despite the defects in its analysis regarding the other subsections
discussed above. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(requiring only one basis under 2511(a) to affirm the termination of parental
rights). However, we are constrained to reverse on this ground as well.
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)
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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 D.L.B., 166 A.3d 322, 327 (Pa. Super. 2017) (quoting In re Adoption
of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015. “The grounds for
termination due to parental incapacity that cannot be remedied are not limited
to affirmative misconduct. To the contrary, those grounds may include acts
of refusal as well as incapacity to perform parental duties.” Id.We readily acknowledge that as to the three older children, years’ worth
of facts allowed the trial court to conclude that Mother engaged in this sort of
repeated and continued misconduct. See 23 Pa.C.S.A. § 2511(a)(2). The
record is replete with examples of Mother’s inability to parent those children.
But when it comes to H.R.N., the history of Mother’s misconduct only began
at H.R.N.’s birth three months prior.
Significantly, unlike some of the other subsections of 2511(a),3 the
legislature did not impose any minimum timeframe for termination under
subsection 2511(a)(2); nor do we. We are not deciding that three months is
too short of a time period for a parent to demonstrate “repeated and continued
incapacity, abuse, neglect or refusal” to care for a child. See 23 Pa.C.S.A. §
2511(a)(2). Rather, we are constrained to reverse in this case because the
record is devoid of any real discussion of H.R.N. or Mother’s reunification
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3 See 23 Pa.C.S.A. § 2511(a)(1), (4), (5), (6), (8).
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efforts since H.R.N.’s birth. The DHS Petition to terminate parental rights to
H.R.N. was largely an afterthought. We gleaned that the child was adjudicated
dependent in May, shortly after Mother tested positive for the substances she
abused during her pregnancy. The trial court also found that Mother did not
seek prenatal care. But our review of the record indicates that the trial court
scheduled only one permanency review hearing between the adjudication
hearing in May 2017 and the termination hearing in August 2017. The record
shows that this one hearing was scheduled for July 2017 and was then
continued because the trial judge was unavailable. During the termination
hearing in August 2017, the testimony of the DHS witness focused primarily
on the facts surrounding the three older children. Further testimony revealed
that Mother had tested both positive and negative for controlled substances
since H.R.N.’s birth. These facts are insufficient to prove, especially by clear
and convincing evidence, that Mother’s misconduct was repeated and
continued with respect to H.R.N. Because we reverse as to the Section
2511(a) analysis, we need not discuss the trial court’s conclusions as to the
bifurcated Section 2511(b) analysis.
We are aware of the fractured state that our decision leaves this family,
just as we are aware that the ultimate outcome might be the same, and
Mother’s parental rights may eventually be terminated. To be clear, nothing
we have said here disturbs the trial court’s order placing H.R.N. with her
siblings in the care of the paternal aunt. Without evidence, however, we are
reduced to mere speculation, which can never justify bypassing the
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heightened due process afforded to parents engaged in the juvenile court
system.
Orders affirmed in part, reversed in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/18
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