In the Interest of: R.F.D.R.C., A Minor ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.F.D.R.C., A : IN THE SUPERIOR COURT OF
MINOR APPEAL OF J.H., MOTHER : PENNSYLVANIA
: No. 383 EDA 2019
Appeal from the Order Entered January 11, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): CP-51-AP-0000796-2018
IN THE INTEREST OF: A.U.H-J., A : IN THE SUPERIOR COURT OF
MINOR APPEAL OF J.H., MOTHER PENNSYLVANIA
: No. 384 EDA 2019
Appeal from the Order Entered January 11, 2019
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): CP-51-AP-0000797-2018
IN THE INTEREST OF: R.C., A : IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: J.H., MOTHER
: No. 386 EDA 2019
Appeal from the Order Entered January 11, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002785-2016
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IN THE INTEREST OF: A.H., A : IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: J.H., MOTHER
: No. 387 EDA 2019
Appeal from the Order Entered January 11, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002091-2017
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 16, 2019
At appellate docket numbers 383 EDA 2019 and 384 EDA 2019, J.H.
("Mother") appeals from the orders terminating her parental rights to her two
daughters, R.C. also known as R.F.D.R.C., and A.H. also known as A.U.H.-J.
and A.H.-J.1 (collectively "the Children"). At appellate docket number 387
EDA 2019, Mother appeals from the order changing A.H.'s permanency goal
to adoption.2 We affirm.
1 The trial court terminated the parental rights of A.H.'s father, I.J., on
January 11, 2019. I.J. has not appealed.
2 Mother purports to appeal at 386 EDA 2019 from a January 11, 2019 order
changing R.C.'s permanency goal. Notice of Appeal, 1/31/19. The trial court
did not change R.C.'s permanency goal on January 11, 2019, because her
father's parental rights had not been terminated. N.T., 1/11/19, at 53-55.
According to the Department of Human Services, the trial court did not change
R.C.'s permanency goal until March 5, 2019, following the termination of her
father's parental rights. Department of Human Services' Brief at 3 n.1 and
n.2. Therefore, we quash the appeal at 386 EDA 2019.
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R.C. was born in July 2016 at twenty-three weeks gestation and required
oxygen and a feeding tube; she and Mother tested positive for marijuana and
opioids at R.C.'s birth. N.T., 1/11/19, at 18, 31-32, 42. On December 14,
2016, the Department of Human Services ("DHS") obtained an Order of
Protective Custody for R.C. upon her hospital discharge. R.C. entered a pre -
adoptive medical foster home in December 2016. Id. at 16, 18, 42. The trial
court declared R.C. dependent on December 23, 2016. Petition to Terminate
Parental Rights Re R.C., 10/5/18, at ¶ DD.
A.H. was born in June 2017 at twenty-seven weeks gestation; Mother
tested positive for marijuana at A.H.'s birth. N.T., 1/11/19, at 31-32, 43. On
August 7, 2017, DHS obtained an Order of Protective Custody for A.H. upon
her discharge from the hospital. A.H. entered the same pre -adoptive medical
foster home as R.C. in August 2017. Id. 10, 16, 31-32, 39. The trial court
declared A.H. dependent on September 8, 2017. Petition to Terminate
Parental Rights Re A.H., 10/5/18, at ¶ RR.
A single case plan ("SCP") was created for Mother on August 8, 2017.
Her SCP objectives included: (1) completion of random drug screens; (2)
following recommendations of a dual diagnosis assessment; (3) continuation
of services from Achieving Reunification Center ("ARC"), including parenting
classes; (4) visitation with the Children; and (5) continuation of mental health
treatment and drug and alcohol counseling. N.T., 1/11/19, at 19. Because
Mother failed to meet her SCP objectives for reunification, DHS filed petitions
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to terminate Mother's parental rights to the Children and to change their
permanency goals from reunification to adoption. Petitions, 10/5/18.
The trial court conducted a termination/goal change hearing on
January 11, 2018, at which Mr. Gregory Williams, the Community Umbrella
Agency ("CUA") caseworker, and Mother testified. At the time of the hearing,
R.C. had been in foster care for twenty-five months, and A.H. had been in
foster care for seventeen months. N.T., 1/11/19, at 16, 18. Following the
hearing, the trial court terminated Mother's parental rights to the Children
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and § 2511(b),3 and
changed A.H.'s permanency goal to adoption. Mother filed separate notices
of appeal and Pa.R.A.P. 1925(a)(2) statements of matters complained of on
appeal on January 31, 2018. The trial court filed a single Pa.R.A.P. 1925(a)
opinion on March 12, 2019.
Mother presents the following issues for our consideration:
1. The trial court committed an error of law and abuse of
discretion by involuntarily terminating [Mother's] parental
rights under 23 Pa. C.S. § 2511(a), where the evidence showed
3 Mother has waived any challenge to termination pursuant to 23 Pa.C.S.
§ 2511(a)(5) because she failed to provide any legal citations or analysis in
her appellate brief. Pa.R.A.P. 2119(a) and (b); see also Banfield v. Cortes,
110 A.3d 155, 168 (Pa. 2015) ("Where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is waived.
It is not the obligation of an appellate court to formulate [an] appellant's
arguments for him." Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa.
2014)).
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that [M]other substantially complied with the Family Service
Plan goals established by the Department of Human Services
of the City of Philadelphia (DHS).
2. The trial court committed an error of law and abuse of
discretion by involuntarily terminating [Mother's] parental
rights under 23 Pa. C.S. § 2511(a) and (b), where the
Department of Human Services of the City of Philadelphia
(DHS) failed to prove by clear and convincing evidence that
involuntary [sic] terminating [Mother's] parental rights would
best serve the emotional needs and welfare of [A.H.4].
3. The trial court committed an error of law and abuse of
discretion by changing the permanency goal from reunification
to adoption where the Department of Human Services of the
City of Philadelphia failed to provide sufficient evidence that
such a goal change would be best suited for [A.H.]'s needs and
welfare.
Mother's Brief at unnumbered 5.
We review Mother's first two issues according to the following standard:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
4 Although Mother included a challenge to the termination of her parental
rights to R.C. in her Pa.R.A.P. 1925(a)(2) statement, she did not raise that
issue in her appellate brief. Concise Statement of Errors Complained of on
Appeal, 1/31/19, at ¶ 2; Mother's Brief at unnumbered 5. "Issues not
presented in the statement of questions involved are generally deemed
waived." Werner v. Werner, 149 A.3d 338, 341 (Pa. Super. 2016).
However, "such a defect may be overlooked where [an] appellant's brief
suggests the specific issue to be reviewed and appellant's failure does not
impede our ability to address the merits of the issue." Id. We presume that
Mother intended to challenge the termination of her parental rights to A.H.
and R.C. Therefore, we decline to find waiver.
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unreasonableness, partiality, prejudice, bias, or ill -will. The trial
court's decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, governs
termination of parental rights and requires a bifurcated analysis:
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 interests
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) (citations omitted).
Instantly, we conclude that the certified record supports the termination
orders pursuant to Section 2511(a)(2) 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:
***
(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,
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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. § 2511(a)(2), (b); see also In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc) (stating that we must agree with the trial court only
as to any one subsection of Section 2511(a), as well as Section 2511(b), in
order to affirm).
Pursuant to 23 Pa.C.S. § 2511(a)(2), parents are required to make
diligent efforts toward the reasonably prompt assumption of full parental
responsibilities. In re A.L.D., 797 A.2d 326, 340 (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. Further, the grounds for termination of parental rights
under Section 2511(a)(2), 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. at
337.
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With respect to Section 2511(b), this Court has explained, "Intangibles
such as love, comfort, security, and stability are involved in the inquiry into
the needs and welfare of the child." In re C.M.S., 884 A.2d 1284,1287 (Pa.
Super. 2005) (citation omitted). Furthermore, the trial 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. (citation
omitted). However, this Court has stated, "In cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case." In re K.Z.S., 946 A.2d
753,763-764 (Pa. Super. 2008) (citation omitted).
Mother's complete argument against termination of her parental rights
under Section 2511(a)(2) and (b) consists of the following statements:
Mother remedied the conditions and causes of the
incapacity. Mother testified that due to an inability to reach her
social worker, Mr. Williams, she had been incapable of updating
him on her progress. [N.T., 1/11/19, at 47]. She had acquired
two jobs, one as a dish washer and one at a daycare. [Id. at 48].
Mother testified that she was regularly drug tested through her
employment and that her screens came up negative. [Id.]
Mother testified that she had continued at her drug treatment
program. [Id.] Mother also testified that she had housing. [Id.
at 47]. Therefore, Mother had remedied the problems that
brought her daughters into care.
* * *
DHS did not prove by clear and convincing evidence that
severance of the parent child bond would cause no lasting
irreparable harm to the [C]hildren.
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Mother's Brief at unnumbered 9,10.
The trial court disposed of Mother's termination challenge as follows:
The documents and testimony presented at the Termination
Hearing provided the trial court clear and convincing evidence to
terminate Mother's parental rights. The trial court also found that
the termination of these rights would be in the best interests of
[the] Children pursuant to 23 Pa. C.S.A. §§ 2511(a)(1)(2)(5) and
(8) . . The testimony of the CUA worker, Mr. Williams, was
. .
deemed to be credible and accorded great weight. The court
found that Mother was unable to control her drug addiction, did
not complete parenting [classes] and did not consistently visit the
Children nor did she complete other SCP objectives. In addition,
the [c]ourt determined that the termination of [Mother's] parental
rights was in the best interests of the Children pursuant to 23
Pa.C.S.A. § 2511(b). The court found that the Children's daily
physical and emotional needs were addressed by the Children's
foster parents, who provided the Children a safe and caring
environment. [T]ermination of Mother's parental rights would
. . .
not have a detrimental effect on the Children and was in the
Children's best interest.
Trial Court Opinion, 3/12/19, at 7-8 (footnotes omitted).
Upon review, we discern no abuse of the trial court's discretion in
terminating Mother's parental rights to the Children. Although Mother
informed the trial court about what she has done to comply with the SCP
objectives, she offered no evidence to support her self-serving testimony or
explanation for her failure to inform DHS or CUA of her progress. In contrast,
CUA caseworker Gregory Williams provided a complete description of Mother's
situation. DHS and CUA had already been involved with Mother, as she tested
positive for drugs at the birth of her older child, M.H.-B, in 2010. N.T.,
1/11/19, at DHS Exhibit 5. Mother did not have any of her four children in
her care. Id. at 16-19. R.C. and A.H. were placed in the same pre -adoptive
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medical foster care directly from the hospital and have remained there. Id.
at 16, 18-19, 31-33, 39. Mr. Williams personally discussed Mother's SCP
objectives with her, provided her copies of the SCP, ensured that she had his
contact information, and offered to help her locate a mental health provider.
Id. at 36-38.
Mother failed to comply with her substance abuse or mental health
objectives. She did not successfully complete court -ordered random drug
testing, dual diagnosis assessment, and mental health and substance abuse
treatment. N.T., 1/11/19, at 25-27. Mother admitted to her reliance on
marijuana; she enjoyed marijuana and did not think that its use should be
illegal. Id. at 37.5 Although Mother enrolled in outpatient substance abuse
treatment at Chances in 2017, she never completed the program. Id. at 26-
27. Mother also admitted to experiencing depression and anxiety, but she did
not enroll in treatment to address these issues. Id. at 38. Mother did not
provide any program or contact information to confirm her compliance with a
dual diagnosis service. Id. at 27-28. CUA referred Mother to ARC on three
occasions for parenting, employment, and housing. Id. at 28. Mother
completed two intake sessions and attended two parenting classes, but she
5 Mother stipulated that she tested positive for cannabis on November 9,
2017, December 6, 2017, January 26, 2018, and April 20, 2018; she tested
positive for marijuana on July 7, 2015, June 22, 2016, and April 23, 2018;
and she was a no show/no call for various assessments on August 5, 2015,
July 11, 2016, January 2, 2018, January 9, 2018, January 29, 2018, February
2, 2018, and May 10, 2018. N.T., 1/11/19, at 30-31, DHS Exhibits 6-11.
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did not successfully complete any ARC programs. Id. at 28-29. ARC
discharged Mother for non-compliance on July 20, 2017, and February 10,
2018. Id. at DHS Exhibits 12-14.
As for housing, Mother moved from a relative's house to a shelter for
six months in 2018; by August 2018, she had left the shelter. N.T., 1/11/19,
at 32-35. As of the termination/goal-change hearing, Mr. Williams did not
know where Mother was living or if she had appropriate housing. Id. at 38-
39.
CUA offered Mother weekly supervised visitation with the Children. N.T.,
1/11/19, at 20. She confirmed six visits and attended three with R.C. in two
years. Id. at 20-21, 24. She visited with A.H. twice in one year. Id. at 22.
Mother's reasons for not visiting with the Children included being busy, trying
to work, oversleeping, and simply missing appointments. Id. at 25. When
she did visit, the Children did not know who she was. Id. at 22. They cried,
and Mother tried her best to console them. Id. at 22-23. Mother's last visit
with the Children was on December 27, 2017, more than one year before the
termination/goal-change hearing. Id. at 39.
The Children are in the same pre -adoptive medical foster home and
enjoy a loving relationship with the foster parents. N.T., 1/11/19, at 39-40.
R.C. refers to the foster parents as "mom and dad or mommy," and A.H. looks
to the foster parents as "parental figures." Id. at 10, 40. The foster parents-
not Mother-are performing all necessary parental duties required to meet the
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Children's needs. Id. at 11, 40-44. The Children are thriving in the care of
the foster parents who meet all of their medical and daily needs. Id. at 43,
44.6 Terminating Mother's parental rights would not cause irreparable harm
to the Children because they do not have a bond with Mother. Id. at 41, 44.
Mr. Williams' testimony supports the trial court's conclusion that DHS
presented clear and convincing evidence that Mother's rights should be
terminated pursuant to 23 Pa.C.S. § 2511(a)(2). Mother's repeated and
continued illegal drug use and her mental health issues caused the Children
to be without essential parental care, control, and subsistence necessary for
their physical or mental well-being since birth. Furthermore, the causes of
the incapacity, neglect, and refusal cannot or will not be remedied. 23 Pa.C.S.
§ 2511(a)(2); In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.
2003).
Mr. Williams' testimony also supports the trial court's determination that
termination of Mother's parental rights best served the Children's
developmental, physical, and emotional needs and welfare pursuant to 25
Pa.C.S. § 2511(b). Mother essentially abandoned the Children at birth. There
is no evidence of a parent -child bond between Mother and the Children. In
6 The Children's legal counsel informed the trial court that she had visited the
foster home in December 2018, saw the Children interact with the foster
parents, and concluded "the home is an appropriate home for the [C]hildren.
It is in the best interest of the [C]hildren to continue living in that home."
N.T., 1/11/19, at 51-52.
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contrast, the foster parents have filled the parental role since they received
each child directly from the hospital. Thus, we affirm the orders terminating
Mother's parental rights to the Children.
In her third issue, Mother challenges the goal change for A.H. from
reunification to adoption with a two -sentence argument:
A Court must make a child's best interest the focus in this
determination. DHS did not prove by clear and convincing
evidence that . A.H.'s best interest would not be served by
. .
reunification.
Mother's Brief at unnumbered 10.
When presented with a goal change petition, the trial court:
considers the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made towards
alleviating the circumstances which necessitated the original
placement; the appropriateness and feasibility of the current
placement goal for the child; and, a likely date by which the goal
for the child might be achieved.
In Interest of A.N.P., 155 A.3d 55, 67 (Pa. Super. 2017) (quoting In re
A.K., 936 A.2d 528, 533 (Pa. Super. 2007)). Additionally, in a change of goal
proceeding, the best interests of the children, and not the interests of the
parent, must guide the trial court; the parent's rights are secondary. In re
M.T., 101 A.3d 1163, 1173 (Pa. Super. 2014). "The burden is on the Agency
to prove the change in goal would be in the child's best interests." Id. (citation
omitted). This Court has stated:
The focus of all dependency proceedings, including change of goal
proceedings, must be on the safety, permanency, and well-being
of the child. The best interests of the child take precedence over
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all other considerations, including the conduct and the rights of
the parent.... While parental progress toward completion of a
permanency plan is an important factor, it is not to be elevated to
determinative status, to the exclusion of all other factors.
Id. (citation omitted). We review goal -change decisions for an abuse of
discretion. In Interest of R.W., 169 A.3d 129, 134 (Pa. Super. 2017).
We note that the trial court did not include a goal -change analysis in its
Pa.R.A.P. 1925(a) opinion. Nevertheless, our careful review of the certified
record leads to the conclusion that a goal change to adoption was appropriate
for A.H. Mother abandoned A.H. at birth, engaged in only two visits with A.H.,
and failed to complete her SCP objectives for reunification. A.H. entered foster
care directly from the hospital; she is bonded with her foster parents and
receiving her daily physical, developmental, emotional needs from them. As
this Court has explained, "a child's life cannot be held in abeyance while a
parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child's
need for permanence and stability to a parent's claims of progress and hope
for the future." In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006). Accordingly, we discern no abuse of the trial court's discretion in
concluding that a change in A.H.'s permanency goal to adoption is in the best
interest of A.H.
Appeal at 386 EDA 2019 quashed. Orders terminating Mother's parental
rights to R.C. and A.H. affirmed. Order changing A.H.'s permanency goal to
adoption affirmed.
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Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 7/16/19
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