Adoption of S.M., Appeal of: T.B. ( 2018 )

J. S55032/18 & S55033/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF S.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.B., MOTHER : No. 1662 EDA 2018
Appeal from the Decree, April 30, 2018,
in the Court of Common Pleas of Montgomery County
Orphans’ Court Division at No. 2017-A-0186
IN RE: ADOPTION OF L.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.B., MOTHER : No. 1663 EDA 2018
Appeal from the Decree, April 30, 2018,
in the Court of Common Pleas of Montgomery County
Orphans Court Division at No. 2017-A-0187
BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 24, 2018
T.B. (“Mother”) appeals from the April 30, 2018 decrees entered in the
Court of Common Pleas of Montgomery County, Family Court Division,
involuntarily terminating her parental rights to her dependent children, S.M.,
female child, born in June of 2015, and L.M., male child, born in May of 2013
(collectively, “Children”), pursuant to the Adoption Act, 23 Pa.C.S.A.
§§ 2511(a)(1), (2), (8), and (b). We have consolidated Mother’s appeals
sua sponte. After careful review, we affirm.
J. S55032/18 & S55033/18
At the termination hearing, the trial court set forth the following
“designed to satisfy the Pennsylvania Rules of Appellate Procedure 1925(a)”:
Now, the Office of Children & Youth -- I am going to
refer to it as OCY -- filed a petition to terminate the
parental rights of [Mother] and [S.M. (“Father”)] to
[S.M.] and [L.M.].
The petition was filed on October the 18th, 2017, and
alleges the following grounds as a basis for
terminating parental rights: Section 2511(a)(1),
Section 2511(a)(2) and Section 2511(a)(8) of the
Pennsylvania Adoption Act.
On January 23, 2018, OCY amended its petition for
[Father] to include Section 2511(a)(11) where the
parent is required to register as a sex offender.
Notes of testimony, 4/30/18 at 134.
Throughout this hearing this Court has heard evidence
regarding the repeated displays of admitted poor
judgment by [Mother and Father].
Admitted Exhibit OCY-9 shows that [Father] was
convicted and began a state sentence in 2000 for
rape, aggravated sexual assault and deviant sexual
assault. His two victims were children, family friends,
females age 11 and 13. Because of these convictions,
[Father] is subject to sex offender conditions including
a requirement to register as a sex offender. [Father]
remains on probation supervision today.
[Mother] is addicted, admittedly, to pain medications.
[Father], while they were together, assisted [Mother]
in obtaining those drugs. [Mother] exhibited
drug[-]seeking behavior.
[Mother] also has some criminal cases from 2017,
namely IRS fraud and credit card theft.
The relationship of [Mother and Father] was described
by numerous witnesses as chaotic and toxic.
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2016 was a pivotal year for this family. [Mother and
Father] experienced unstable housing, at one point
living with seven other people. There were 103 police
contacts with the New Hanover Police Department,
culminating with the issuance of a PFA against
[Father] during the summer of 2016. However,
[Mother and Father] continued to see each other.
[Father] was jailed, therefore, for violating the terms
of his PFA and he served three months in the
Montgomery County Correctional Facility.
During this time [Mother] entered drug rehab.
The [C]hildren were placed with the maternal
grandmother in June of 2016. When the maternal
grandmother became ill, the [C]hildren went into the
legal custody of OCY in October of 2016.
OCY Exhibits 3, 4 and 5 contain Family Service Plans.
These documents were admitted into evidence. The
goals of all of these plans for both parents involved
the same elements that I talked about as the legal
expectation or the legislative expectations of parents
for all children.
The Family Service Plan goals were to provide housing
and all of the other things that children need;
employment; drug treatment for [Mother]; anger
management treatment, training, counseling,
whatever for [Father]; parenting for both parents;
and, importantly, cooperation with whatever services
that OCY provided.
During a meeting with the OCY staff in January of
2017, [Father] became angry that [Mother] brought
her fiance [sic] to the meeting and smashed car
windows. As a result [Father] was imprisoned for six
months and he was released at the end of September
2017.
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OCY filed this petition then to terminate the parental
rights of both [Mother and Father] the following
month.
Throughout this hearing this Court has heard no
progress for [Mother] related to her Family Service
Plan goals and next to little and minimal progress for
[Father]. The only exception being that of
employment.
[Mother] continued to use drugs. She testified that
she was homeless, yet she refused to go to a shelter
or to do something about it.
[Mother] is unemployed and has been off and on
throughout the entire duration of the [C]hildren’s
presence in OCY custody.
[Mother] did not complete mental health treatment as
required.
And as it relates to [Mother’s] drug use, a review of
OCY Exhibit 8 shows that there were 57 attempts to
obtain a urinalysis. Thirteen were obtained. Of those
thirteen, five were positive.
[Mother] largely was uncooperative with OCY. She
lied to caseworkers. The Time Limited Family
Reunification service was discharged as unsuccessful.
[Father] has fallen short in his goal of meeting
housing, living with his mother in a one-room setting.
He is, however, employed.
[Father] took parenting classes completing nine of
twelve sessions offered.
In this case [Father’s] biggest issue is rage. There is
an anger that needs to be controlled before I think
these kids are safe. That rage is still outstanding.
[Father] testified that he attended anger management
classes while in state prison. Either it wore off or it
never took effect. However, there was little to no
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impetus to pursue that Family Service Plan goal to
date. There is, according to [Father’s] testimony,
scheduled training, but today is the day in court that
everybody looks forward to. This is the day to have
all of your ducks in a row, because this is the day that
I am looking at.
There was no doubt in my mind that both [Mother and
Father] love their kids. That was so evident to me.
[Father] never missed a visit. That was
commendable.
[Mother], however, was inconsistent and had
numerous excuses, however, provided little notice in
terms of advising the supervision staff of those missed
visits.
The two [C]hildren in this case entered OCY with
problems. [L.M.] needed speech therapy. He had
behavior issues and required extensive dental work to
the point of needing anesthesia. [Mother]
commended herself, however, on attending this
dental surgery.
[S.M.], at two years old, had mobility issues, walking
on her tiptoes. She was behind in her immunizations.
She also had speech problems as well as limited
behavioral issues and the dental issue of one cavity at
the age of two.
Id. at 139-144.
In this case the testimony clearly establishes that
there is affection and [Mother and Father] care for and
interact with their [C]hildren. [Father] has
maintained throughout his visits consistent contact,
and [Mother], although her contact is somewhat
inconsistent, there is somewhat of a bond between
[Mother and Father] and the [C]hildren.
Despite a parent’s wishes and desires to preserve a
parental bond or role, in cases where the parent is
incapable of providing even basic necessities and will
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continue to suffer such parental incapacity, the focus
of this Court is not on the parent’s wishes and desires,
but on the child’s need for safety, permanency,
security, and their well-being.
The child’s safety is this Court’s paramount concern.
Substitute care such as foster care is only a temporary
setting. It is not a place for children to grow up in.
Despite the bond, I have not heard any evidence that
[Mother and Father] are ready to go home with their
[C]hildren today. Today is your day in court. [F]ather
does not have a home. He hasn’t attended the anger
management that he needs to control his rage.
[M]other has no job, hasn’t gone through treatment.
It is not there.
....
In this case the testimony clearly established that
there is affection and I find that there is a minimal
parental bond between birth parents and [S.M.] and
[L.M.], however, I find that a stronger bond exists
between [S.M.], [L.M.] and their foster parents. I
heard testimony of the significant improvement of the
[C]hildren. I heard of the affection, the tenderness,
the caring of the foster parents, the concern.
Id. at 152-153.
At the conclusion of the hearing, the trial court entered the decrees
terminating Mother’s and Father’s parental rights to S.M. and L.M. On May 25,
2018, Mother filed timely notices of appeal, together with concise statements
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).1
Subsequently, the trial court filed a Rule 1925(a) opinion stating that its
1 The certified record before us provides no indication as to whether Father
appealed from the April 30, 2018 decrees terminating his parental rights to
S.M. and L.M.
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reasoning for the entry of the April 30, 2018 decrees is set forth in the April 30,
2018 termination hearing transcript at pages 133-155. (Trial court opinion,
6/12/18.)
Mother raises the following issue for our review: “The Trial Court erred
in finding clear and convincing evidence existed to terminate [] Mother’s
parental rights under 23 Pa.C.S.[A.] Section 2511(a)(1)(2)(8) [sic].”
(Mother’s briefs at 7.)
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “If
the factual findings are supported, appellate courts
review to determine if the trial court made an error of
law or abused its discretion.” Id. “[A] decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. The trial
court’s decision, however, should not be reversed
merely because the record would support a different
result. Id. at 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple
hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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) (citation omitted). “[I]f competent
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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) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511,
the court must engage in a bifurcated process prior to
terminating parental rights. Initially, the focus is on
the conduct of the parent. The party seeking
termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in
Section 2511(a). Only if the court determines that the
parent’s conduct warrants termination of his or her
parental rights does the court engage in the second
part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child
under the standard of best 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). We have
defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
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In this case, the trial court terminated Mother’s parental rights pursuant
to Sections 2511(a)(1), (2), and (8), as well as (b). We have long held that,
in order to affirm a termination of parental rights, we need only agree with
the trial court as to any one subsection of Section 2511(a), as well as
Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the court’s termination decrees pursuant to
Subsections 2511(a)(1) 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.
....
(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
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initiated subsequent to the giving of notice of
the filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(1).
A court may terminate parental rights under
Section 2511(a)(1) where the parent demonstrates a
settled purpose to relinquish parental claim to a child
or fails to perform parental duties for at least the six
months prior to the filing of the termination petition.
The court should consider the entire background of
the case and not simply:
mechanically apply the six-month
statutory provision. The court must
examine the individual circumstances of
each case and consider all explanations
offered by the parent facing termination
of his . . . parental rights, to determine if
the evidence, in light of the totality of the
circumstances, clearly warrants the
involuntary termination.
In re Z.P., 994 A.2d 1108, 1272 (Pa.Super. 2010) (internal citations omitted;
citations omitted).
Here, in terminating Mother’s parental rights under Section 2511(a)(1),
the trial court determined that OCY produced clear and convincing evidence
of conduct sustained for a period of at least six months prior to the filing of
the termination petitions that evidenced Mother’s settled intent to relinquish
her parental claim to S.M. and L.M. or her refusal or inability or failure to
perform parental duties. Specifically, the trial court found that the evidence
clearly and convincingly demonstrated that Mother failed to perform parental
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duties by failing to obtain housing, participate in drug treatment, obtain
employment, and comply with the goals of her family service plan. (Notes of
testimony, 4/30/18 at 145.) The trial court further noted that despite the
availability of rehabilitation and substance abuse treatment, Mother chose to
forgo treatment and live in her car. (Id.)
We conclude that the record supports the trial court’s factual findings
and that the trial court did not abuse its discretion in terminating Mother’s
parental rights to S.M. and L.M. under Section 2511(a)(1).
We now turn to whether termination was proper under Section 2511(b).
As to that section, our supreme court has stated as follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs and
welfare of the child.” 23 Pa.C.S.[A.] § 2511(b). The
emotional needs and welfare of the child have been
properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53
A.3d 781, 791 (Pa.Super. 2012). In In re E.M., 620
A.2d [481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare”
requires consideration of the emotional bonds
between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M.,
53 A.3d at 791. However, as discussed below,
evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267. “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
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the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
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.
[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. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
Our supreme court has stated that, “[c]ommon sense dictates that
courts considering termination must also consider whether the children are in
a pre-adoptive home and whether they have a bond with their foster parents.”
In re T.S.M., 73 A.3d at 268. The court directed that, in weighing the bond
considerations pursuant to Section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. court observed,
“[c]hildren are young for a scant number of years, and we have an obligation
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to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
Here, based on the testimony and evidence presented at the termination
hearing, the trial court found that a minimal parental bond exists between
Mother and Children, that a stronger bond exists between Children and their
foster parents, and that Children have significantly improved since being
placed with their foster parents. (Id. at 153.) Therefore, the trial court
concluded that termination would best serve the Children’s needs and welfare
and that Children would not suffer irreparable harm if Mother’s parental rights
were terminated. (Notes of testimony, 4/30/18 at 153.) Our review of the
record supports this determination, and the trial court did not abuse its
discretion in terminating Mother’s parental rights.
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Mother’s
parental rights under Sections 2511(a)(1) and (b).
Decrees affirmed.
Stabile, J. joins this memorandum.
Olson, J. concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/18
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