In the Interest of: V.L.D.H, a Minor ( 2015 )

J-S35017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: V.L.D.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.R., MOTHER No. 2897 EDA 2014
Appeal from the Order entered September 3, 2014,
in the Court of Common Pleas of Philadelphia County, Domestic
Relations, at No(s): CP-51-AP-0000397-2014,
CP-51-DP-0000811-2013
BEFORE: MUNDY, OLSON, and PLATT*, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 24, 2015
A.R. (“Mother”) appeals from the order dated and entered on
September 3, 2014, granting a petition filed by the Philadelphia County
Department of Human Services (“DHS” or the “Agency”) to involuntarily
terminate Mother’s parental rights to V.L.D.H. (“Child”), a female, who was
born in January of 2012.1 We affirm.
* Retired Senior Judge specially assigned to the Superior Court.
1
DHS filed the petition pursuant to Section 2511(a)(1), (2), (5), (8), and (b)
of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and
sought to change Child’s permanency goal from reunification to adoption,
pursuant to Section 6351(f) of the Juvenile Act, 23 Pa.C.S.A. § 6351(f). On
September 3, 2014, the trial court continued the hearing on the goal change
petition to November 20, 2014. On November 21, 2014, the trial court
entered a decree involuntarily terminating the parental rights of Child’s
father, V.P.H., granting his petitions to confirm consent to adoption and his
petition for voluntary relinquishment filed on October 23, 2014, and
changing Child’s permanency goal to adoption, pursuant to Section 6351(f)
of the Juvenile Act, 42 Pa.C.S.A. § 6351(f). Father has not filed a notice of
appeal from the decree terminating his parental rights, nor is he a party to
the instant appeal.
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The record reflects that DHS filed a petition to involuntarily terminate
Mother’s parental rights to Child on August 13, 2014. On September 3,
2014, the trial court held the termination hearing. At the hearing, DHS
presented the testimony of Erica G. Williams, Psy.D., the Director of Forensic
Programming at Assessment and Treatment Alternatives, Inc., (“ATA”), who
performed a parenting capacity evaluation of Mother. N.T., 9/3/2014, at 18,
28-29. DHS then presented the testimony of Joanna Pecora, who previously
was employed by Volunteers of America as a caseworker, and who
supervised the visitation between Child and Mother between November of
2013 and June of 2014, when her agency closed. Id. at 45-47. Next, DHS
presented the testimony of Tiffany Byrd, the foster care worker assigned to
Child’s case through Lutheran Children Parenting Services. Id. at 18, 67-68.
DHS also presented the testimony of Barbara Forest, DHS social services
manager currently assigned to Child’s case. Id. at 17, 78-80. Finally,
Mother testified on her own behalf.
Based on the testimonial and documentary evidence, the trial court set
forth the factual background and procedural history of this case as follows:
On January 28, 2013, DHS received an Emergency General
Protective Services report (“EGPS”), alleging that Child fell
three times while in Mother’s care. On March 12, 2013, the
Department of Human Services (“DHS”) visited Mother and
Child at Peoples’ Emergency Center (“PEC”). Mother
explained to DHS that it was difficult for her to manage []
Child in the stroller. On April 3, 2013, during another DHS
visit, Mother stated that she had obtained employment at
PEC, that she had planned to return to mental health
treatment, and that [] Child will attend daycare. DHS then
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learned that PEC intended to discharge Mother due to her
non-compliance and continuous altercations with other
residents, and[, in] fact, Mother was discharged on April 9,
2013. On April 10, 2013, Mother was residing at the
Episcopal Community Services (“ECS”) St. Barnabas
Mission. On April 18, 2013, DHS learned that Mother was
non-compliant with ECS policies and had frequent
altercations with ECS staff. On April 19, 2013, DHS
received an [EGPS] report [], alleging that Child had a
severe ear infection and Mother was not administering
medicine, as directed. DHS learned that St. Barnabas
planned to discharge Mother as of April 13, 2013.
On April 19, 2013, DHS obtained an Order of Protective
Custody (“OPC”) and Child was placed under paternal aunt’s
care. Mother was no longer residing at [ECS] St. Barnabas
Mission[.] At the shelter care hearing on April 22, 2013,
Child was temporarily committed to DHS. On April 29,
2013, Child was adjudicated dependent and fully committed
to DHS. The court ordered Mother to have supervised visits
at the agency and she was referred to the Behavioral Health
System (“BHS”) for a psychological evaluation. On May
23[, 2014,] a Family Service Plan (“FSP”) was completed for
Mother. The FSP objectives were: to meet Child’s daily
basic needs including food and clothing; to provide Child
with safe living conditions and supervision; to stabilize her
mental health; maintain the relationship with her Child
through regular visitation; and participate in placement
activities. On July 30, 2013, in a permanency review
hearing, the court found that Mother was minimally
compliant with her FSP objectives. Mother was referred to
the Achieving Reunification Center (“ARC”) twice but she
was discharged due to her non-compliance. Mother was
ordered to attend the North East Treatment Center (“NET”)
for mental health on a consistent basis, but eventually
shortly thereafter stopping attending. On August 28, 2013,
Mother attended a second FSP meeting. Mother re-engaged
mental health treatment at NET on October 14, 2013. On
October 29, 2013, in a permanency review hearing, the
court found that Mother was moderately compliant with the
FSP. Mother was ordered to continue attending NET, to
keep searching for appropriate housing, and to attend co-
parenting counseling.
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On January 27, 2014, in a permanency review hearing, the
court found that Mother was compliant with her FSP
objectives. Mother was ordered to have supervised visits
with [] Child and take a parenting capacity evaluation. The
court took notice that Mother was living in Horizon House
Shelter. On January 31, 2014, Mother and [F]ather had an
altercation at ARC. On February 10, 2014, Mother obtained
a Protection from Abuse (“PFA”) against [F]ather. Mother
attempted to include [] Child [in] the [PFA] order[,] but it
was denied. On February 18, 2014, DHS received notice
from ARC that Mother was discharged for declining services.
On April 23, 2014, a PFA order was issued against [F]ather
as to Child. On April 25, 2014, Mother’s parenting capacity
evaluation recommended that Mother was to receive
treatment for trauma-informed therapy; to participate [in] a
psychiatric evaluation; to participate in a program to
support employment; and to explore housing options
independent from DHS. The evaluation concluded that if
Mother were able to demonstrate observable progress, for a
period of six months, unsupervised visitation would be
recommended.
On April 28, 2014, in [a] permanency review hearing, the
court found Mother to be minimally compliant with her FSP
objectives. Mother only attended seven of the thirteen
supervised visits. The court ordered visitation to remain
supervised and [in] the community, only if Mother
provide[d] four[-]day advance notice to the agency. The
FSP objectives remained the same. DHS filed a petition for
involuntary termination of Mother’s parental rights on May
28, 2014. On July 17, 2014, a FSP meeting was held[,] and
[] Child[’s] permanency goal was changed to adoption.
Mother’s parental rights were terminated on September 3,
2014. Mother was present at the termination hearing. On
the same day, the court found that DHS made reasonable
efforts towards reunification[,] and Mother was minimally
compliant with FSP objectives.
Trial Court Opinion, 12/23/2014, at 1-3.
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On October 1, 2014, Mother timely filed a notice of appeal along with a
concise statement of matters complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
In her brief on appeal, Mother raises eight issues, as follows:
A. Whether the court erred in failing to find that for the six
months immediately preceding the filing of the petition,
when [] Child was bonded with [Mother] and [M]other
completed a parenting class, stabilized her mental health
issues, obtained trauma informed and based therapy, was
visiting [] [C]hild, obtained employment training, was
seeking housing for herself and [] Child, was seeking
employment, completed the majority of her family services
plan objectives, and did not intend to relinquish her claim to
[] Child or refused and/or failed to perform parental
duties[?]
B. Whether the court erred in failing to find that for the six
months immediately preceding the filing of the petition[,] []
[M]other had consistent contact and visits with [] [C]hild, []
[C]hild was bonded with her and [] [M]other completed a
parenting class, stabilized her mental health issues,
obtained trauma informed and based therapy, was visiting
[] Child, obtained employment training, was seeking
housing for herself and [] Child, was seeking employment,
completed the majority of her family services plan
objectives[?]
C. Whether the court erred in finding that there were repeated
and continuing findings of incapacity, abuse, neglect and/or
dependency of [] [C]hild by [] [M]other, when [] Child was
bonded with her and [] [M]other completed a parenting
class, stabilized her mental health issues, obtained trauma
informed and based therapy, was visiting [] [C]hild,
obtained employment training, was seeking housing for
herself and [] [C]hild, was seeking employment, and
completed the majority of her family services plan
objectives[?]
D. Whether the court erred in finding that the conditions that
led to the removal or placement of [] [C]hild continue to
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exist, as to [M]other, when [] [C]hild was bonded with her
and [] Mother completed a parenting class, stabilized her
mental health issues, obtained trauma informed and based
therapy, was visiting with [] [C]hild, obtained employment
training, was seeking housing for herself and [] [C]hild, was
seeking employment, and completed the majority of her
family services plan objectives[?]
E. Whether the court erred in finding that the conditions that
led to the removal or placement of [Child] continue to exist
and the termination of parental rights would best serve the
needs and welfare of [] [C]hild, when [] [M]other can
remedy the conditions within a reasonable period of time,
and when [] [C]hild was bonded with her[,] and [] [M]other
completed a parenting class, stabilized her mental health
issues, obtained trauma informed and based therapy, was
visiting [] [C]hild, obtained employment training, was
seeking housing for herself and [] [C]hild, was seeking
employment, completed the majority of her family services
plan objectives[?]
F. Whether the court erred in finding that DHS made, or did
not have to make, reasonable efforts towards reunification,
by either failing and/or refusing to help find a viable options
or to consider options other than terminating [M]other’s
parental rights, when [] Child was bonded with her[,] and
[][M]other completed a parenting class, stabilized her
mental health issues, obtained trauma informed and based
therapy, was visiting [] [C]hild, obtained employment
training, was seeking housing for herself and [] [C]hild, was
seeking employment, completed the majority of her family
services plan objectives[?]
G. Whether the court erred in terminating the rights of []
[M]other, when the sole reason she was unable to provide
housing, provide income, clothing and medical care for the
care and maintenance of [] [C]hild, was her lack of income,
which was changing, since she completed the job training
and was actively seeking employment[?]
H. Whether the court erred in terminating the rights of []
[M]other where it was not supported by clear and
convincing evidence and not in the best interest of []
[C]hild, and there was a bond between [] [M]other and
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[C]hild and the termination of parental rights would have a
negative effect on the developmental, physical and
emotional needs of [] [C]hild, pursuant to 23
Pa[.]C[.]S[.]A[.] Section 2511(b)[?]
Mother’s Brief, at 3-5 (unpaginated). 2
Mother argues that the trial court erred in terminating her parental
rights under Section 2511(a)(1), (2), (5), (8), and (b). She asserts that she
obtained training for employment, was seeking housing for herself and Child,
obtained mental health and trauma-based therapy, and was continuing to
live in a shelter, where she complied with their rules. Mother also alleges
that she applied to housing programs and completed the majority of her FSP
objectives. Mother asserts that she did not intend to relinquish her claim to
Child, nor did she refuse and/or fail to perform parental duties. She claims
that the sole reason she was unable to obtain housing and provide medical
care for Child was economic, due to her lack of income. Mother claims that
her lack of income situation was changing, because she had registered with
employment agencies. See Mother’s Brief, at 9. Mother contends that the
trial court erred by determining that termination would best serve Child’s
needs and welfare. Mother claims that she was consistently visiting Child,
there was a bond between them, and that Child would suffer harm by
2
In her statement of questions involved in her brief, Mother did not raise the
issue of the change of Child’s permanency goal to adoption under Section
6351 of the Juvenile Act. She, therefore, waived any challenge to the goal
change to adoption. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue
not set forth in or suggested by an appellate brief’s statement of questions
involved and concise statement is deemed waived).
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severing that bond. Mother requests that this Court reverse the trial court’s
order. Id. at 18.
We review an appeal from the termination of parental rights in
accordance with the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in
dependency cases, our standard of review requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa.
2010). 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.; R.I.S., 36 A.3d 567,
572 (Pa. 2011) (plurality opinion). As has been often
stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel Bassett v. Kia Motors
America, Inc., 34 A.3d 1, 51 (Pa. 2011); Christianson v.
Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will. Id.As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate
courts are not equipped to make the fact-specific
determinations on a cold record, where the trial judges are
observing the parties during the relevant hearing and often
presiding over numerous other hearings regarding the child
and parents. R.J.T., 9 A.3d at 1190. Therefore, even
where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court’s legal conclusions are not the result of an error of law
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or an abuse of discretion. In re Adoption of Atencio, 650
A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “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.’” Id., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
This Court may affirm the trial court’s decision regarding the termination of
parental rights with regard to any one subsection of Section 2511(a). See
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). After we
determine that the requirements of Section 2511(a) are satisfied, we
proceed to review whether the requirements of Section 2511(b) are
satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.
2008) (en banc). This Court has stated that the focus in terminating
parental rights under Section 2511(a) is on the parent, but it is on the child
pursuant to Section 2511(b). Id. at 1008.
Section 2511(a)(1),(2), (5), (8), and (b), provide, in relevant part, as
follows:
§ 2511. Grounds for involuntary termination
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(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 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.
***
(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.
***
(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
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child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511.
In reviewing the evidence in support of termination under Section
2511(b), our Supreme Court recently 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. § 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.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
This Court has stated that, in conducting a bonding analysis, the court
is not required to use expert testimony, but may rely on the testimony of
social workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa.
Super. 2010). This Court has observed that no bond worth preserving is
formed between a child and a natural parent where the child has been in
foster care for most of the child’s life, and the resulting bond with the
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natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super.
2008).
We reviewed the certified record, the parties’ briefs, the relevant law,
and the trial court’s opinion entered on December 23, 2014. We find that the
trial court aptly discussed the evidence against the requirements of Section
2511(a)(1), (2), (5), (8), and (b). We will not impose our own credibility
determinations and re-weigh the evidence. We must defer to the trial
judge’s determination, as the factual findings are supported by the record,
and the court’s legal conclusions are not the result of an error of law or an
abuse of discretion. In re Adoption of S.P., 47 A.3d at 826-27. The trial
court determined that Mother “has been inconsistent and her compliance
with the FSP objectives has never been higher than moderate” and, at times
was “minimally compliant[.]” Trial Court Opinion, 12/23/2014, at 6. The
trial court stated that “Mother is unable to obtain housing on her own[,]”
noting that two different shelters discharged her for failing to comply with
rules and she declined housing services from the ARC program. Id. The trial
court also concluded Mother failed to accomplish her FSP objectives to obtain
employment or to complete recommended mental health treatment. Id. at
6-7. Moreover, the trial court recognized that “Mother only attended seven
of the [13 supervised] visits granted” with Child and “never reached the
point to be granted unsupervised visits.” Id. at 7. In examining those
visits, the trial court determined that Mother did not exhibit appropriate
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parenting skills, despite completing parenting classes, and, thus, the trial
court “had grave concerns about Mother’s ability to provide parental
supervision on her own.” Id. at 8. The trial court acknowledged, “Child has
been in care since April 19, 2013, for a period of [18] months, as to the date
in which the termination petition was filed.” Id. at 11. Based upon all of the
foregoing, we conclude the competent evidence in the record supports the
trial court’s findings with regard to Section 2511(a).
Moreover, the competent evidence in the record supports the trial
court’s determination that, under Section 2511(b), termination of Mother’s
parental rights would best serve Child’s needs and welfare. The evidence as
presented supports the trial court’s finding that there is no parent/child bond
between Mother and Child, Child does not identify Mother as a parent, and
that termination of Mother’s parental rights would not harm Child. See N.T.,
9/3/2014, at 161. The trial court found that there is a strong bond between
Child and her foster parent, the foster parent is providing appropriate care,
and that “Child will suffer serious harm if she is removed from [the] foster
parent’s home.” Trial Court Opinion, 12/23/2014, at 13. We will not disturb
the trial court’s decision regarding Section 2511(b). In re Adoption of
S.P., 47 A.3d at 826-827.3
3
We note that, with regard to Mother’s argument that DHS failed to make
reasonable efforts to provide services to reunify her with Child prior to the
termination of her parental rights, as previously stated, Mother waived this
issue. Regardless, our Supreme Court recently held that neither subsection
(a) nor (b) of Section 2511 requires the trial to consider reasonable efforts
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Accordingly, we affirm the trial court’s decree terminating Mother’s
parental rights to Child pursuant to Section 2511(a)(1), (2), (5), (8), and (b)
of the Adoption Act on the basis of the trial court opinion filed on December
23, 2014. We conclude that there has been no error or abuse of discretion
in this case and that the December 23, 2014 opinion meticulously,
thoroughly, and accurately disposes of Mother’s issues on appeal.
Therefore, we affirm on the basis of the trial court’s opinion and adopt it as
our own. Because we have adopted the trial court’s opinion, we direct the
parties to include the trial court’s opinion in all future filings relating to our
examination of the merits of this appeal, as expressed herein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2015
in relation to a decision to terminate parental rights. In the Interest of:
D.C.D., 105 A.3d 662, 675 (Pa. 2014). The trial court, in the instant
matter, considered the reasonable efforts on the part of DHS to reunify Child
with Mother, and concluded that DHS did make reasonable efforts. Our
review of the record shows that there is ample evidence to support the trial
court’s determination that DHS made reasonable efforts, and, despite being
offered reasonable services and completing parenting classes, Mother failed
to satisfy her FSP goals.
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