In the Interest of: S.N.M., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.N.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.C.M., MOTHER No. 1158 EDA 2015
Appeal from the Decree entered March 23, 2015,
in the Court of Common Pleas of Philadelphia County, Family
Court, at No(s): CP-51-AP-0000344-2014
IN THE INTEREST OF: S.S.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.C.M., MOTHER No. 1161 EDA 2015
Appeal from the Decree entered March 23, 2015,
in the Court of Common Pleas of Philadelphia County, Family
Court, at No(s): CP-51-AP-0000342-2014
BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 02, 2016
Appellant, S.C.M., (“Mother”) appeals from the decrees and orders
entered on March 23, 2015 in the Court of Common Pleas of Philadelphia
Family Court involuntarily terminating Mother’s parental rights to S.S.M.
(born June of 2010) and S.N.M. (born October of 2004) (collectively “the
Children”), under section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, and
changing the permanency goal for the Children to adoption under section
6351 of the Juvenile Act, 42 Pa.C.S. § 6351.1 We affirm.
1
S.D.M. is Mother’s third child. The trial court clerk mistakenly printed a
termination decree for S.D.M. The trial court held a conference on June 9,
2015. The trial court issued an order vacating the decree of involuntary
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Since February of 2012, Department of Human Services of Philadelphia
County (“DHS”) has been involved with this family due to Mother’s neglect of
Children. On February 15, 2012, DHS received a General Protective Services
(“GPS”) report that alleged the Children were left home alone, the house
was left in a deplorable condition, and Mother had a history of drug abuse.
At that time, DHS obtained an Order of Protective Custody (“OPC”), and
Children were placed into foster care. On February 17, 2012, a shelter care
hearing was held, and Mother was referred for a drug screen, dual diagnosis
assessment, and monitoring. On February 27, 2012, the Children were
adjudicated dependent, and Mother was granted supervised visitation twice
a week.
A Family Service Plan (“FSP”) hearing was conducted on March 29,
2012. At that hearing, an FSP was developed. Mother’s objectives were to:
(1) learn and understand age appropriate behavior and expectation for
Children at Achieving Reunification Center (“ARC”); (2) provide adequate
and safe living conditions for Children by locating and obtaining suitable
housing; (3) achieve and maintain recovery from drugs and alcohol, as well
as sign releases to measure her progress; (4) stabilize mental health
termination of parental rights as to S.D.M. and reinstated the Department of
Human Services of Philadelphia County’s termination petition. Mother filed a
praecipe to withdraw her appeal as to S.D.M on July 1, 2015. On July 6,
2015, the discontinuance was certified. On March 23, 2015, the trial court
terminated the parental rights of K.R., S.N.M.’s father, to S.N.M. On March
23, 2015, the trial court terminated the parental rights of R.N., S.S.M.’s
father, to S.S.M. K.R. and R.N. are not parties in this appeal, nor did they
file their own separate appeals.
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problems by participating in a parenting capacity evaluation; (5) maintain a
relationship with the Children through regular visitation; and (6) meet
regularly with a DHS social worker. Several permanency review hearings
were held between 2012 and 2014.
On July 10, 2014, DHS filed petitions for termination of Mother’s
parental rights to the Children. On September 22, 2014, a termination
hearing was held, and the hearing was continued to March 23, 2015. At the
hearings, P.B., the Children’s paternal grandmother; Mother; Kamilah Henry,
a DHS case worker; and Monica Kras, a case manager for Lutheran Children
Family Services, testified. On March 23, 2015, following the termination
hearing, the trial court entered the decrees and order involuntarily
terminating Mother’s parental rights to the Children pursuant to 23 Pa.C.S.
2511(a)(1 & 8) and (b), and changing their permanency goal to adoption.
On April 17, 2015, Mother timely filed notices of appeal, along with
concise statements of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). On May 22, 2015, this Court sua sponte
consolidated Mother’s appeals. Mother raises the following issues:
1. Did the [t]rial [c]ourt err in terminating [Mother’s] parental
rights under [23] Pa.C.S. Section 2511?
2. Did the [t]rial [c]ourt err in finding that termination of
parental rights best served the [C]hildren’s developmental,
physical and emotional needs under sub-section 2511(b)?
3. Did the [t]rial [c]ourt err in changing the [C]hildren’s goal[s]
to adoption?
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Mother’s Brief at vi.
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 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).
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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)(1).
Section 2511 provides, in relevant part, 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:
(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.
23 Pa.C.S. § 2511(a).
We have explained this Court’s review of a challenge to the sufficiency
of the evidence to support the involuntary termination of a parent’s rights
pursuant to section 2511(a)(1) of the Adoption Act as follows:
To satisfy the requirements of section 2511(a)(1), the
moving party must produce clear and convincing evidence of
conduct, sustained for at least the six months prior to the filing
of the termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to
perform parental duties. In addition, Section 2511 does not
require that the parent demonstrate both a settled purpose of
relinquishing parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights may be
terminated pursuant to [s]ection 2511(a)(1) if the parent either
demonstrates a settled purpose of relinquishing parental claim to
a child or fails to perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
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explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
[s]ection 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super.2008) (internal citations
omitted).
Regarding the definition of “parental duties,” this Court has stated:
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A
child needs love, protection, guidance, and support. These
needs, physical and emotional, cannot be met by a merely
passive interest in the development of the child. Thus, this
Court has held that the parental obligation is a positive duty
which requires affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association with
the child.
Because a child needs more than a benefactor, parental duty
requires that a parent exert himself to take and maintain a place
of importance in the child’s life.
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with . . . her physical and emotional
needs.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super.2004), appeal denied, 872
A.2d 1200 (Pa.2005) (internal citations omitted).
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On appeal, Mother argues that the trial court erred in terminating her
parental rights to the Children. Mother’s Brief at 1. Specifically, Mother
contends that she was participating in drug, alcohol, and mental health
treatment at the time of the hearing. Id. Mother also states that she
visited the Children frequently while they were in foster care. Id.In terminating Mother’s parental rights pursuant to section 2511(a)(1),
the trial court reviewed the record and the evidence presented, and
concluded that it was clear from the record that, for a period of six months
leading up to the filing of the petition for involuntary termination, Mother
failed to perform any parental duties for the Children. Trial Court Opinion,
6/24/15, at 5. The trial court found:
During the entire life of the case Mother has been minimally
compliant with her [FSP goals]. The trial court found Mother to
be minimally compliant with her FSP on May 22, 2012, August
21, 2012, November 19, 2012, February 12, 2013, May 14,
2013, and July 31, 2014. As to Mother’s drug and alcohol
objective, Mother did not successfully complete an appropriate
program, as recommended by the CEU, to achieve her goal.
The record revealed that Mother has a long history of substance
abuse. One of Mother’s Children reported that Mother was
smoking Marijuana. Mother admitted she has tested positive for
PCP, Marijuana and Xanax, and that she currently “struggles”
with her addiction on a daily basis.
Additionally, Mother has had problems with relapsing.
The record established that Mother tested positive for
Marijuana, Benzodiazepine, and PCP on November 19, 2012,
and PCP on September 19, 2013. DHS social worker personally
discussed with Mother her substance abuse. Mother has not
successfully completed a drug and alcohol program that
sufficiently fits her needs. In January 2013, Mother started a
program at Gaundenzia but her attendance was inconsistent.
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The program counselors deemed it not appropriate for Mother
due to the fact that she required a higher-level program.
In June 2013, Mother also attended a program at
Southwest New Stop, but again she did not complete it. Mother
completed an inpatient program through Girard Medical Center
from January 24, 2014, to February 28, 2014. However, the
program was insufficient for Mother’s needs and she was
recommended to attend a higher-level program, which she
never completed. Additionally, Mother has refused to maintain
contact with DHS to sign releases about her inpatient drug and
alcohol program.
In regard to Mother’s stabilization of her mental health,
the record revealed that Mother failed to attend her parenting
capacity evaluation ordered by the trial court. Mother only
completed half of her parenting capacity evaluation. Mother
was rescheduled for a second appointment but she failed to
attend. Throughout the life of the case, Mother was ordered
numerous times to complete her parenting capacity evaluation.
Mother was referred to ARC for housing but she failed to
complete the workshops, and was discharged due to her lack of
participation. Currently, Mother lacks housing. At ARC, Mother
only completed her parenting classes. Consequently, Mother’s
lack of housing, successful completion of an appropriate drug
and alcohol program, and not completing her parenting capacity
evaluation, are the current barriers to Mother’s reunification
with [the] Children. Mother has also been very inconsistent
with her visitation. In 2014, Mother was offered fifty-six visits
but she only attended twenty-five. Mother did not confirm her
attendance or provide any reason to support her lack of
attendance. Mother stated that she was dependent upon one
Father of the Children to obtain transportation for visiting [the]
Children. However, the Lutheran agency social worker
personally spoke to Mother on multiple occasions offering
tokens to facilitate Mother’s transportation. During the entire
life of the case, Mother has not been ready or in a position to
obtain unsupervised visits with [the] Children. The trial court
actually changed Mother’s visits to bi-weekly due to her
inconsistency. Mother has also failed to meet her employment
goal as established in her ISP. Mother admitted that she is not
working.
Trial Court Opinion, 6/24/15 (citations omitted).
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Ms. Henry testified that Mother’s compliance with her FSP goals was
minimal. N.T., 9/22/14, at 38. Ms. Henry testified that Mother’s barriers to
reunification included lack of stable housing, incomplete drug and alcohol
programs, and a failure to complete the parenting capacity evaluation. Id.
at 45. Ms. Henry further testified that Mother was discharged from the drug
and alcohol treatment program Guadenzia for lack of participation. Id. at
34-35. Ms. Henry also testified that Mother’s failure to complete the second
half of the parenting capacity evaluation was due to her failure to attend the
session. Id. at 70.
The record reveals that the trial court took into consideration that
Mother failed to perform her parental duties by her lack of compliance. Trial
Court Opinion, 6/24/15, at 7. Moreover, the trial court found that the
Children have been in custody for over four years, and the conditions that
led to their placement in DHS’s care and custody still exist. Id. 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 his child is converted, upon the failure to fulfill his or 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 at 856. Consequently, Mother’s issue on appeal lacks merit, and
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we find no abuse of discretion in the trial court’s evaluation of Section
2511(a)(1) with respect to Mother.
In addition to basing termination of parental rights on at least one
2511(a) subsection, the trial court must also consider how terminating
Mother’s parental rights would affect the needs and welfare of the Children
pursuant to 23 Pa.C.S. § 2511(b). Section 2511(b) provides:
(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(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),
appeal denied, 897 A.2d 1183 (Pa.2006). “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.
Here, the trial court found as follows:
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[The] Children will not suffer any irreparable harm by
terminating Mother’s parental rights, and it is in the best interest
of the Children to terminate Mother’s parental rights. The
Children have been in foster care, at the current pre-adoptive
home, since October 2013 and November 2013, respectively.
The Children have improved their behavior under the foster
parents[’] care. [The] Children and foster mother have a strong
parent/child bond. They love their foster parents and are happy
with them. The Children look to the foster parents as their
parents. Foster mother meets all of the needs of the Children,
such as attending appointments and obtaining wrap-around
behavior services. Mother and [the] Children have a relationship
but not a parent/child bond. The [trial] court determined that
the testimony of the DHS witnesses was credible. Additionally,
Mother’s parental rights are not being terminated solely on the
basis of environmental factors. It is in the best interest of the
Children to terminate Mother’s parental rights and be adopted.
Mother does not have the capacity to parent [the] Children.
Mother is not able to sustain herself and provide for [the]
Children[’s] needs. [The] Children have been in foster care for
too long and need permanency.
Trial Court Opinion, 6/24/15, at 9.
Ms. Henry and Ms. Kras testified that it is in the best interest of the
Children to terminate Mother’s parental rights, and the Children would not
be harmed if Mother’s rights were terminated. N.T., 9/22/14, at 49-50, 83.
Ms. Henry testified that the Children are comfortable in their foster home.
Id. at 49-50. She testified that there is a bond between the Children and
the Foster Parents. Id. at 51. Ms. Henry further testified that S.S.M. loves
his foster family. Id. at 49. Ms. Henry testified that S.N.M. does not have
any issues or concerns about his foster family and is no longer disrespectful.
Id. at 49-50. Moreover, Ms. Kras testified that there has been a major
improvement in the Children’s behavior while in their foster home. Id. at
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80-81. Ms. Kras testified that the Children have developed a relationship
with the Foster Parents. Id. at 83. Ms. Kras testified that the Children look
to the Foster Parents as parents, not Mother. Id. at 96.
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 was no bond between Mother and the Children which, if severed,
would be detrimental to the Children, and that the termination of Mother’s
parental rights would best serve the needs and welfare of the Children.
Thus, we will not disturb the trial court’s determinations. See In re M.G.,
855 A.2d at 73-74.
Next, Mother argues that the trial court erred in changing the
permanency goals for the Children to adoption.
This Court has stated:
When reviewing an order regarding the change of a placement
goal of a dependent child pursuant to the Juvenile Act, 42 Pa.
C.S.A. § 6301, et seq., our standard of review is abuse of
discretion. When reviewing such a decision, we are bound by
the facts as found by the trial court unless they are not
supported in the record.
In re B.S., 861 A.2d 974, 976 (Pa.Super.2004) (citation omitted).
Further,
In order to conclude that the trial court abused its discretion, we
must determine that the court’s judgment was manifestly
unreasonable, that the court did not apply the law, or that the
court’s action was a result of partiality, prejudice, bias or ill will,
as shown by the record. We are bound by the trial court’s
findings of fact that have support in the record. The trial court,
not the appellate court, is charged with the responsibilities of
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evaluating credibility of the witnesses and resolving any conflicts
in the testimony. In carrying out these responsibilities, the trial
court is free to believe all, part, or none of the evidence. When
the trial court’s findings are supported by competent evidence of
record, we will affirm even if the record could also support an
opposite result.
In re A.K., 936 A.2d 528, 533 (Pa.Super.2007).
Section 6351(f) of the Juvenile Act sets forth the following pertinent
inquiries for the reviewing court:
(f) Matters to be determined at permanency hearing.—
At each permanency hearing, a court shall determine all of the
following:
(1) The continuing necessity for and appropriateness of
the placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the
child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
(5) The likely date by which the placement goal for the
child might be achieved.
(5.1) Whether reasonable efforts were made to finalize
the permanency plan in effect.
(6) Whether the child is safe.
...
(9) If the child has been in placement for at least 15 of
the last 22 months or the court has determined that
aggravated circumstances exist and that reasonable
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efforts to prevent or eliminate the need to remove the
child from the child’s parent, guardian or custodian or to
preserve and reunify the family need not be made or
continue to be made, whether the county agency has filed
or sought to join a petition to terminate parental rights
and to identify, recruit, process and approve a
qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited to
the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling
reason for determining that filing a petition to terminate
parental rights would not serve the needs and welfare of
the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to the child’s
parent, guardian or custodian within the time frames set
forth in the permanency plan.
42 Pa.C.S. § 6351(f)(1)-(6), (9).
Additionally,
[t]he trial court must focus on the child and determine the goal
with reference to the child’s best interests, not those of the
parents. Safety, permanency, and well-being of the child must
take precedence over all other considerations. Further, at the
review hearing for a dependent child who has been removed
from the parental home, the court must consider the statutorily
mandated factors. These statutory mandates clearly place the
trial court’s focus on the best interests of the child.
In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (emphasis in original)
(citations and quotations omitted).
Here, the record reflects that the trial court appropriately considered
the Children’s best interests in deciding whether to change the permanency
goal to adoption. The competent evidence supports the trial court’s
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determinations that the Children have been in foster care for four years, and
that Mother “is unable and refused to place herself in a reunification position
to parent [the] Children.” Trial Court Opinion, 6/24/15, at 10. Moreover,
the competent evidence supports the trial court’s determination that the
Children need to be in “a home that will keep them safe, [and] provide
stability, permanency, and comfort.” Id. Thus, we will not disturb these
determinations. See In re M.G., 855 A.2d at 73-74.
After a careful review, we affirm the decrees and orders terminating
Mother’s parental rights on the basis of Section 2511(a)(1), and (b) of the
Adoption Act, and changing the Children’s permanency goals to adoption
under Section 6351 of the Juvenile Act.
Decrees and orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2016
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