In the Int. of: J.M.L.M., Appeal of: J.F. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M.L.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.F., MOTHER : No. 539 EDA 2019
Appeal from the Decree January 14, 2019
In the Court of Common Pleas of Philadelphia County
Family Court at No: CP-51-AP-0000606-2018,
CP-51-DP-0002351-2016
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 19, 2019
J.F. (“Mother”) appeals from the decree dated January 14, 2019,1 in the
Court of Common Pleas of Philadelphia County, which terminated involuntarily
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* Former Justice specially assigned to the Superior Court.
1 The docket indicates that notice of the decree was not sent until April 12,
2019, and that notice was sent to only the Philadelphia Department of Human
Services (“DHS”), the Philadelphia Solicitor’s Office, and the child advocate
attorney. The docket does not indicate that notice of the decree was sent to
Mother. See In re L.M., 923 A.2d 505, 508-09 (Pa. Super. 2007) (explaining
in an involuntary termination of parental rights appeal that the Rules of
Appellate Procedure designate “the date of entry of an order as the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given[.]”) (citation and quotation marks omitted) (emphasis
omitted).
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her parental rights to her daughter, J.M.L.M. (“Child”), born in October 2016.2
Mother also appeals from the order dated March 6, 2019,3 which changed
Child’s permanent placement goal from reunification to adoption. After careful
review, we are constrained to reverse the termination decree. However, we
affirm the goal change order, because Mother failed to preserve a challenge
to that order for our review.4
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2 The trial court entered a decree confirming the consent of Child’s father, L.M.
(“Father”), and terminating his parental rights on March 6, 2019. Father did
not appeal the termination of his rights.
3 The docket indicates that notice of the order was sent to counsel for Father,
the child advocate attorney, DHS, and the Philadelphia Solicitor’s Office. The
docket does not indicate that notice was ever sent to Mother.
4In her notices of appeal, filed February 13, 2019, Mother indicated that she
was appealing both the decree terminating her parental rights involuntarily
and the order changing Child’s permanent placement goal to adoption. She
averred that the trial court issued the decree and the order on January 14,
2019. However, the record reveals that the court did not enter a goal change
order on that day. While the court entered a permanency review order, the
order did not change Child’s goal. The court did not issue a goal change order
until March 6, 2019, the same day that it terminated Father’s parental rights.
It appears that Mother’s premature appeal does not prevent this Court
from addressing the goal change order, since the trial court stated on January
14, 2019, that it was changing Child’s goal. N.T., 1/14/19, at 63 (“The goal
for the child is changed to adoption”); see also Pa.R.A.P. 905(a)(5) (“A notice
of appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”). Nonetheless, Mother waived any challenge to the goal change
by failing to develop an argument in her brief supported by citation to relevant
legal authority. In re M.Z.T.M.W., 163 A.3d 462, 465 (Pa. Super. 2017) (“It
is well-settled that this Court will not review a claim unless it is developed in
the argument section of an appellant's brief, and supported by citations to
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We summarize the facts and procedural history of this matter as follows.
DHS filed an application for emergency protective custody of Child on August
30, 2017, averring that it had received a general protective services report
raising substances abuse concerns regarding Father earlier that month. DHS
implemented a safety plan whereby Mother and Child’s grandmother would
serve as Child’s caretakers.5 However, DHS averred that the safety plan failed
after it received an additional general protective services report indicating that
Child had been admitted to the hospital due to vomiting and diarrhea. The
report indicated that both Mother and the grandmother appeared to be under
the influence at the hospital, and that Mother had been behaving erratically.
The juvenile court granted emergency protective custody that same day. The
court entered a shelter care order on September 1, 2017, and adjudicated
Child dependent on September 13, 2017.
Just over ten months later, on July 25, 2018, DHS filed petitions to
terminate Mother’s parental rights to Child involuntarily and to change Child’s
permanent placement goal from reunification to adoption. The trial court held
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relevant authority.”). We therefore affirm the March 6, 2018 order changing
Child’s permanent placement goal to adoption.
5 The application for emergency protective custody refers to the grandmother
as Child’s “MGM,” or maternal grandmother, while the remainder of the
pleadings describe her as Child’s paternal grandmother. Also, we note that
DHS’s dependency petition indicates that Father, and not Mother, was one of
Child’s designated caretakers pursuant to the safety plan, despite the fact that
it was Father’s substance abuse that brought the case to DHS’s attention. See
Dependency Petition, 9/8/17, at ¶ c (“A Safety Plan was created, with [the
grandmother] and [Father] as the safety providers, which stated that [Father]
was to have no unsupervised contact with [Child].”).
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a hearing on January 14, 2019, at which DHS presented testimony detailing
Mother’s progress toward regaining custody of Child. First, DHS presented
the testimony of the Community Umbrella Agency (“CUA”) case manager
supervisor, Kaitlin Sullivan. Ms. Sullivan testified that CUA prepared a series
of Single Case Plan (“SCP”) objectives for Mother, including obtaining safe and
stable housing, obtaining employment, visiting Child, attending substance
abuse treatment, and attending mental health treatment. N.T., 1/14/19, at
6.
Concerning Mother’s compliance with her SCP objectives, Ms. Sullivan
testified that Mother had obtained employment, as well as safe and stable
housing. Id. at 13, 17-18. She further testified that Mother was attending
visits with Child consistently, although her attendance had been inconsistent
in the past. Specifically, she reported that Mother attended eight out of twelve
possible visits between December 13, 2017, and March 15, 2018; one out of
four possible visits between March 15, 2018, and July 20, 2018; and four out
of four possible visits between July 20, 2018, and October 26, 2018. Id. at
14. She noted that Mother’s visits are “positive. And Mother’s parenting is
appropriate.” Id. at 15.
Nonetheless, Ms. Sullivan testified that she did not support reunification,
“[b]ecause Mother has not, over the life of this case, addressed the mental
health and drug and alcohol issues that brought this case in.” Id. at 18. Ms.
Sullivan explained that Mother tested positive for marijuana on September 1,
2017, November 27, 2017, December 1, 2017, January 17, 2018, February
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14, 2018, March 15, 2018, April 30, 2018, and July 19, 2018. Id. at 7-8. She
tested negative on December 8, 2017, October 11, 2018, and possibly on
other dates “that are beyond when the petition was filed.” Id. In addition,
Ms. Sullivan reported that Mother completed a dual diagnosis assessment in
December 2017, which recommended treatment. Id. at 7, 10. Mother began
attending an intensive outpatient dual diagnosis program in January 2018.
Id. at 10. She completed a psychological evaluation that same month, and
received diagnoses including “cannabis-use disorder, severe; schizoaffective
[disorder], bipolar type; OCD; PTSD; [and] cluster-B personality traits.” Id.
at 11. Mother attended treatment for only “about a month-and-a-half,” but
then moved to Baltimore, Maryland, in approximately February 2018. Id. at
10, 20. Due to her move, Mother was unable to continue receiving treatment
from her prior provider.6 Id. at 11-12.
Ms. Sullivan testified that Mother resumed attending substance abuse
treatment in Maryland. Id. at 11, 20. She explained that Mother’s health
insurance did not “c[o]me back on” until approximately May 2018. Id. at 20.
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6 Mother’s move to Maryland had a number of other effects as well. Mother’s
move caused her to stop receiving housing and employment services at the
Achieving Reunification Center (“ARC”), where she had completed an intake
appointment in approximately January 2018. N.T., 1/14/19, at 16-17. As
stated above, Mother went on to obtain housing and employment in Maryland.
Id. at 13, 17-18. Mother’s move also caused a reduction in her visits with
Child from weekly to monthly. Id. at 18. Finally, Mother’s SCP objectives had
initially included completing a parenting program, but CUA eliminated that
objective after the move because “it was really not a concern.” N.T., 1/14/19,
at 6, 13.
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In the meantime, CUA had recommended that Mother obtain a “level of care
assessment” in Pennsylvania so that she could obtain treatment in Maryland.
Id. Mother did not follow through with that recommendation. Id. Instead,
she opted to obtain an assessment from the Bureau of Behavioral Health in
Maryland in July 2018. Id. The assessment indicated a diagnostic impression
of “[c]annabis use disorder - severe” and recommended that Mother receive
“[s]tandard [o]utpatient [c]ounseling.” Exhibit DHS 2 (Summary of Findings
and drug screen results). Mother appeared for an appointment at the Mount
Manor treatment facility in August 2018. N.T., 1/14/19, at 9, 20. However,
as Ms. Sullivan acknowledged, “the result of that appointment was that no
treatment was required.” Id. at 20. Ms. Sullivan added that Mother resumed
mental health treatment in July 2018 and last attended treatment in October
2018. Id. at 12.
In addition, DHS presented the testimony of the CUA case manager
currently assigned to this matter, Chauntevia Flowers. Ms. Flowers confirmed
that Mother has maintained employment as well as safe and stable housing.
Id. at 26. She explained, “Mom is working two jobs from my understanding.
We do have pay stubs. . . . Mom provided me a letter from one of her jobs
stating that she is the current general manager there, and she did take the
drug test to have that position.” Id. at 30. Nonetheless, Ms. Flowers indicated
that she too did not support reunification with Mother, “[b]ased on the case
history, and from my understanding, there were drug and alcohol and mental
health objectives that Mom needs to address as well.” Id. at 26.
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Regarding Mother’s substance abuse SCP objective, Ms. Flowers testified
that Mother went to a substance abuse treatment facility called Hope’s Horizon
in October 2018. Id. at 22-23. Ms. Flowers explained that she received
documentation indicating that Mother “attended Hope’s Horizon on October
11th of 2018 and it was recommended that she didn’t need further drug and
alcohol treatment but to remain engaged in mental health therapy.” Id. at
22. Despite the documentation indicating that Mother was not in need of
further substance abuse treatment, Ms. Flowers was hesitant to say whether
Mother had completed her substance abuse SCP objective. She explained, “I
have documentation stating that Mom needed no further recommendation.
[sic] I’m not really sure if that qualifies as completing her objective.” Id. at
27.
Regarding Mother’s mental health SCP objective, Ms. Flowers testified
that Mother last attended mental health treatment on October 30, 2018. Id.
at 23. She then failed to attend mental health treatment appointments on
December 4, 2018, and December 11, 2018. Id. at 23-24. Despite missing
the appointments, Ms. Flowers testified that Mother remained enrolled with
her mental health treatment provider and had an appointment scheduled “for
tomorrow[,]” which would have been January 15, 2019. Id. at 31.
At the conclusion of the hearing, the trial court announced its intention
to terminate Mother’s parental rights to Child involuntarily and change Child’s
permanent placement goal from reunification to adoption. The court issued a
decree memorializing its involuntary termination decision dated January 14,
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2019, and issued a goal change order on March 6, 2019. As noted above,
Mother filed a notice of appeal on February 13, 2019.7 She included a concise
statement of errors complained of on appeal.
Mother now presents the following question for our review: “Whether
there was a legal basis for terminating [Mother’s] parental rights pursuant to
23 Pa.C.S.A. [§] 2511(a)(1), (2), (5), (8)[,] and (b) to change [sic] goal from
reunification to adoption[?]” Mother’s Brief at 6 (unnecessary capitalization
omitted).
We apply the following standard of review when considering an appeal
from a decree terminating parental rights involuntarily:
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7 It appears from the record that Mother’s counsel produced a single notice of
appeal, including the docket numbers from both the involuntary termination
and goal change matters, which was then photocopied and filed separately at
both dockets. This Court issued a rule to show cause order on June 19, 2019,
based on counsel’s failure to comply with Rule 341 of our Rules of Appellate
Procedure. See Pa.R.A.P. 341, Note (“Where . . . one or more orders resolves
issues arising on more than one docket or relating to more than one judgment,
separate notices of appeal must be filed.”); Commonwealth v. Walker, 185
A.3d 969, 977 (Pa. 2018) (holding that the failure to file separate notices of
appeal from an order resolving issues on more than one docket “requires the
appellate court to quash the appeal”). Counsel did not respond to this Court’s
order.
In a recent case, a panel of this Court declined to quash an involuntary
termination appeal based on noncompliance with Rule 341, recognizing the
possibility that “decisional law may have been unclear to this point[.]” In the
Matter of: M.P., 204 A.3d 976, 981 (Pa. Super. 2019). However, the panel
announced that this Court would quash any noncompliant appeals filed after
the date of its decision on February 22, 2019. Id. at 986. Because Mother
filed her notice of appeal over a week in advance of our decision in M.P., we
likewise decline to quash the instant appeals.
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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
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 governs involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It 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).
In the instant matter, the trial court terminated Mother’s parental rights
to Child involuntarily pursuant to Section 2511(a)(1), (2), (5), (8), and (b),
which provides as follows:
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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.
***
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(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.A. § 2511(a)(1), (2), (5), (8), (b).
On appeal, Mother contends that the trial court erred by terminating her
parental rights because it concluded erroneously that she failed to comply with
her SCP goals. Mother’s Brief at 9-10. Mother maintains that she remedied
her substance abuse issues. Id. at 10. Specifically, she directs our attention
to the testimony of Ms. Sullivan and Ms. Flowers, who stated that two separate
programs concluded Mother was not in need of substance abuse treatment.
Id. at 10-11. Mother appears to credit her move to Maryland for at least a
portion of this success, asserting that her substance abuse was “no longer an
issue” after the move. Id. She also asserts that she complied with mental
health treatment, obtained suitable housing, visited with Child regularly, and
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maintained employment. Id. She asserts that she was succeeding at her job
and that she was in training to become a general manager.8 Id. at 11.
The trial court explained its decision to terminate Mother’s rights to Child
as follows, in relevant part:
The underlying Petition to Terminate Mother’s Parental
Rights was filed on July 25, 2018, after Mother failed to meet her
SCP objectives. Specifically, Mother failed to receive substance
abuse and mental health treatment. The record also showed that
Mother tested positive on numerous drug tests. Although there
were indications that Mother had obtained suitable employment
and housing, she was not able to demonstrate that she completed
substance abuse and mental health treatment. . . .
***
Child was adjudicated dependent on October 20, 2017. [sic]
The record demonstrated Mother’s ongoing inability to provide
care for or control of Child due to her failure to remedy the
conditions that brought the [c]hild into care. Specifically, Mother
failed to receive substance abuse treatment and mental health
treatment. The record also demonstrated that Mother tested
positive on numerous drug tests.
***
. . . . Although there were indications that Mother had obtained
suitable employment and housing, she was unable to provide
sufficient evidence as to her financial stability and was unable to
show that she had completed substance abuse and mental health
treatment. Furthermore, the record indicates that Mother had not
resumed mental health treatment until after the filing of the
Petition for Termination of Parental Rights.
The testimony of Ms. Sullivan and Ms. Flowers and the
documents and testimony presented at the Termination Hearing
provided the trial court clear and convincing evidence to terminate
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8As quoted above, the testimony at the hearing was that Mother was already
a general manager. N.T., 1/14/19, at 30.
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Mother’s parental rights. The trial court also found that the
termination of these rights would be in the best interest of Child
pursuant to 23 Pa. C.S.A. [sic] §§[]2511(a)(1)[,] (2)[,] (5)[,] and
(8) and 23 Pa.C.S.A. § 2511(b). Although Mother had made
progress since the [c]hild was adjudicated dependent, Mother was
unable to convince the trial court that she was in control her [sic]
drug addiction. Additionally, Mother was unable to convince the
trial court that she was receiving adequate mental health
treatment . . . .
Trial Court Opinion, 4/21/19, at 3-7 (footnotes omitted).
After careful review of the certified record in this case, and mindful of
our standard of review, which requires us to show great deference to the trial
court, we are constrained to reverse the decree terminating Mother’s parental
rights involuntarily. We do so for two reasons. First, the evidence supporting
the court’s decision is highly tenuous and directly contradicts certain of the
court’s findings. Second, the court’s opinion reveals that it committed an error
of law by shifting the burden of proof onto Mother. We discuss these problems
in turn.
We begin with a discussion of the evidence supporting the trial court’s
termination decree with respect to each of the relevant subsections of Section
2511(a). For ease of disposition, we will address Section 2511(a)(1) first. To
satisfy the requirements of this subsection, “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 re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008). The trial court
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must then consider the parent’s explanation for his or her abandonment of
the child, in addition to any post-abandonment contact. Id. This Court has
emphasized that a parent does not perform parental duties by displaying a
merely passive interest in the development of a child. In re B.,N.M., 856
A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005)
(quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003), appeal denied,
859 A.2d 767 (Pa. 2004)). Rather,
[p]arental 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 his or her physical and emotional
needs.
Id. (citations omitted).
Here, DHS filed its petition to terminate Mother’s parental rights to Child
involuntarily on July 25, 2018, such that the relevant six-month period began
on January 25, 2018. At the start of the relevant period, as detailed above,
Mother was addressing CUA’s substance abuse and mental health concerns by
attending an intensive outpatient dual diagnosis treatment program, although
the record suggests that she may not have been attending the program with
complete consistency. It also appears that Mother was attending the majority
of her visits with Child, as she attended eight out of the twelve possible visits
between December 13, 2017, and March 15, 2018. At or near the start of the
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period, Mother attended an intake appointment at ARC for employment and
housing services.
It is true that Mother’s progress decreased significantly by March 2018.
Mother attended only one out of four possible visits between March 15, 2018,
and July 20, 2018. In addition, she left her dual diagnosis treatment program
and her services at ARC in approximately February 2018. However, Mother
resumed her progress by obtaining an assessment at the Bureau of Behavioral
Health in Maryland on July 19, 2018. After obtaining the assessment, Mother
sought out further substance abuse treatment at two facilities and reenrolled
in mental health treatment.9 She also obtained housing and employment,
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9 In its opinion, the trial court indicates that “Mother had not resumed mental
health treatment until after the filing of the Petition for Termination of Parental
Rights.” Trial Court Opinion, 4/21/19, at 6. This statement appears to be a
reference to Section 2511(b). The statute states, in relevant part, that “[w]ith
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(b).
After review, there is no indication in the record exactly when Mother
resumed attending mental health treatment. The record indicates that Mother
enrolled in treatment “in July of 2018,” apparently “following the 7/20 court
date[,]” and that she last attended in October 2018. N.T., 1/14/19, at 12. It
is possible, therefore, that Mother resumed mental health treatment prior to
the filing of the termination petition on July 25, 2018.
In addition, the question that Section 2511(b) presents is not whether
Mother enrolled in mental health treatment before DHS filed the petition to
terminate her rights. The question is whether Mother “first initiated” her
“efforts . . . to remedy the conditions described” in Section 2511(a)(1) before
she received notice that DHS filed the petition to terminate her rights. Id. In
the instant matter, it appears from the record that Mother initiated her efforts
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although it is not clear from the record precisely when that occurred. Mother
may have obtained her housing and employment well before the six months
concluded.10 This evidence indicates, at best, that Mother was performing her
parental duties at the start of the relevant six-month period, refused or failed
to perform parental duties for approximately several months, and then began
performing parental duties again before the six-month period ended. Thus,
the record does not support the termination of Mother’s rights pursuant to
Section 2511(a)(1).
The record also belies the trial court’s findings and conclusions regarding
Section 2511(a)(5) and (8). Both of these subsections require, among other
things, that a parent fail to remedy “the conditions which led to the removal
or placement of the child[.]” 23 Pa.C.S.A. § 2511(a)(5), (8). This Court has
defined what constitutes the relevant “conditions” somewhat broadly. By way
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by obtaining an assessment on July 19, 2018, six days before the filing of the
petition. Therefore, to the extent the court failed to consider Mother’s efforts
based on its belief that she did not reenroll in mental health treatment until
after DHS filed its petition, it misapplied Section 2511(b).
10We note that the trial court states in its opinion that Mother “was unable to
provide sufficient evidence as to her financial stability[.]” Trial Court Opinion,
4/21/19, at 6. However, it was undisputed during the hearing that Mother
had obtained safe and stable housing, as well as employment. Ms. Flowers
testified that Mother was working two jobs and that she provided CUA with
paystubs, as well as a letter indicating that she was employed as a general
manager at one of those jobs. N.T., 1/14/19, at 30. There was simply no
question during the hearing that Mother was financially stable and there was
no basis for the court to conclude otherwise. See In the Interest of H.K.,
172 A.3d 71, 80 (Pa. Super. 2017) (“[T]rial courts may not engage in the
capricious disregard of competent and credible evidence”).
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of example, we have held that a parent failed to remedy the conditions causing
her child’s placement when the placement resulted primarily from the parent’s
positive drug test for cocaine and the parent was later incarcerated for drug
offenses. See In re C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (“Mother's
conviction and subsequent term of incarceration derives directly from her
‘drug issues,’ it is a part of the original reasons for the removal of C.L.G. from
Mother’s care and forms a basis for the termination of Mother’s parental rights
pursuant to Section 2511(a)(8).”).
In this case, the record is clear that Mother’s alleged substance abuse
was the primary if not the sole cause of Child’s placement. Mother’s recent
substance abuse issues appear to have consisted entirely of marijuana use 11
and Mother received a diagnosis of cannabis dependence after she completed
her psychiatric evaluation on January 18, 2018.12 Exhibit DHS 3 (Psychiatric
Evaluation) at 3. As noted above, Mother also completed an assessment in
Maryland on July 19, 2018, receiving a diagnosis of “[c]annabis use disorder
– severe.” Exhibit DHS 2 (Summary of Findings and drug screen results).
She tested positive for THC on the same day. Id.
However, the record appears to indicate that Mother’s substance abuse
issues were largely resolved by the time of the hearing. While Mother’s July
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11 Mother reported that she used opioids “several years ago[.]” Exhibit DHS
3 (Psychiatric Evaluation) at 3-4.
12Page three of the evaluation describes the diagnosis as “[c]annabis use d/o,
severe,” while page four describes the diagnosis as “[c]annabis dependence,
uncomplicated[.]” Exhibit DHS 3 (Psychiatric Evaluation) at 3-4.
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2018 assessment indicated a diagnosis of “severe” cannabis use disorder, the
assessment recommended that she receive standard outpatient counseling
only. Exhibit DHS 2 (Summary of Findings and drug screen results). Further,
Ms. Sullivan and Ms. Flowers testified that two substance abuse treatment
facilities, Mount Manor in August 2018 and Hope’s Horizon in October 2018,
concluded that Mother was not in need of substance abuse treatment. Indeed,
Ms. Sullivan testified that Mount Manor even declined to admit Mother despite
her request for treatment. See N.T., 1/14/19, at 9-10 (“Mother went for an
intake at Mount Manor . . . in August. And Mother was provided a letter that
she was declined for services.”).13 Given this evidence, the record contradicts
rather than supports the trial court’s finding that Mother failed to remedy the
conditions causing Child’s placement pursuant to Section 2511(a)(5) and (8).
Finally, we turn our attention to Section 2511(a)(2). Our Courts adhere
to the following analysis:
. . . . In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
____________________________________________
13DHS contends inaccurately that Mother refused to attend services at Mount
Manor. See DHS’s Brief at 10 (“Mother attended intake at Mount Manor in
August 2018 but later declined services.”).
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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
As we have established, Mother had safe and stable housing, as well as
employment, at the time of the termination hearing. Moreover, two separate
facilities indicated that Mother was not in need of further substance abuse
treatment. The only remaining problem indicating that Mother may not be
able to provide parental care for Child, therefore, was that she suffered from
mental health issues. The record suggests that Mother’s mental health issues
were, at the time of her psychiatric evaluation in January 2018, severe. DHS
entered a copy of Mother’s evaluation into evidence, which indicated that she
received diagnoses including schizoaffective disorder, bipolar type; cannabis
dependence; post-traumatic stress disorder; and obsessive compulsive
disorder. See Exhibit DHS 3 (Psychiatric Evaluation), at 4. The evaluation
also indicated that Mother displays “Cluster B personality traits[.]” Id. at 3.
Among other things, Mother reported at the evaluation that she had recent
urges to harm herself or commit suicide, and that she had “attacked people
. . . ‘a couple of days ago.’” Id. at 1. Mother even reported that she had
been “‘stealing a lot’” and “seeing shadows and . . . ‘people who’re not there.’”
Id. If these types of symptoms persisted until the time of the hearing on
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January 14, 2019, it is clear that Mother would not be capable of providing
parental care to Child.
Another critical factor in any Section 2511(a)(2) analysis is the subject
child’s need for permanence and stability. As this Court has often emphasized,
“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). Here, Child had
remained in foster care for a year and four months by the time of the hearing.
Mother failed for a significant portion of that time to address DHS’s concerns
and then moved to Maryland, which has limited to her ability to maintain a
relationship with Child.
There is, however, a significant problem with the trial court’s decision
to terminate parental rights with respect to Section 2511(a)(2), which is that
Mother’s mental health issues were evidently far less severe at the time of the
hearing. By all accounts, Mother had been leading a high-functioning lifestyle
since her move to Maryland, in that she maintained safe and stable housing,
worked two jobs, and had risen to the level of general manager at one of her
jobs. Once again, Mother underwent an assessment on July 19, 2018, which
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recommended that she attend standard outpatient counseling only.14 Mother
enrolled in mental health treatment and remained enrolled at the time of the
hearing, although she did not attend two recent appointments. Mother was
also attending visits with Child in the months prior to the hearing consistently
and it was undisputed that Mother’s parenting was “appropriate” and “really
not a concern.” Id. at 13-15. Realistically, it is doubtful that any parent with
a history of significant mental health issues will ever “complete” treatment, or
that he or she will be “cured” such that treatment will no longer be necessary.
Given that Mother’s history of mental health issues did not appear to be
interfering with her life, and given that she remained enrolled in mental health
treatment, it was far from certain that this history would prevent her from
parenting Child, or that she could not or would not remedy her parental
incapacity pursuant to Section 2511(a)(2).
Nonetheless, even if we were to conclude that DHS did present sufficient
evidence to support the involuntary termination of Mother’s parental rights to
Child, we would still reverse the trial court’s decree, as our review of the
court’s opinion reveals that it committed, perhaps unintentionally, an error of
law with regard to the burden of proof in this case. As quoted above, the
court stated that it terminated Mother’s parental rights, in part, because she
“was not able to demonstrate that she completed substance abuse and mental
____________________________________________
14While the assessment does not appear to have been as thorough as Mother’s
January 2018 psychiatric evaluation, it may be worth noting that it did not
indicate any of the same diagnoses as the evaluation, other than cannabis use
disorder.
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health treatment,” and because she “was unable to provide sufficient evidence
as to her financial stability.” Trial Court Opinion, 4/21/19, at 3, 6. The court
added that Mother “was unable to show that she had completed substance
abuse and mental health treatment,” and that she “was unable to convince
the trial court” that she was in control of her drug addiction and receiving
adequate mental health treatment. Id. at 6-7. These statements suggest
that the court placed the burden of proof at the termination hearing on Mother,
rather than DHS. Instead of requiring that DHS prove Mother was an
unsuitable parent, it appears that the court required Mother to prove that she
remedied DHS’s allegations and concerns.
It is beyond cavil that the burden of proof in an involuntary termination
proceeding rests solely on the petitioning party, and that the petitioning party
must meet that burden by clear and convincing evidence. See Santosky v.
Kramer, 455 U.S. 745 (1982) (“Before a State may sever completely and
irrevocably the rights of parents in their natural child, due process requires
that the State support its allegations by at least clear and convincing
evidence.”); In re D.C.D., 105 A.3d 662, 676 (Pa. 2014) (“Ultimately, the
grounds of termination must be demonstrated by the state by clear and
convincing evidence.”). Stated plainly, Mother did not need to convince the
trial court of anything. See Bartasavich v. Mitchell, 471 A.2d 833, 836 (Pa.
Super. 1984) (“We note most emphatically that it is not appellant’s burden to
show his capability, but rather, it is the burden of the petitioner who seeks the
termination of his parental rights to show his incapacity.”). It was DHS’s
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obligation to produce clear and convincing evidence in support of its petition
and the court’s statements to the contrary are indicative of impermissible
burden shifting in violation of Mother’s right to due process.15
____________________________________________
15 Burden shifting appears to have been a theme even during the hearing. For
example, as the following illustrates, we observe that the child advocate cross-
examined Mother regarding her failure to produce expert witnesses, as
follows:
[Child advocate]: It’s going to be a hearing for termination
of your parental rights. Do you have an expert today from your
drug and alcohol program that indicates you don’t need any
treatment?
THE MOTHER: I have two letters from two different drug and
alcohol programs.
[Child advocate]: Objection, Your Honor. Non-responsive
once again.
THE COURT: Sustained.
[Child advocate]: Do you have an expert today from your
mental health treatment program that indicates you’re compliant
with drug and -- with mental health?
THE MOTHER: What do you mean by that?
[Child advocate]: Do you have your therapist here today so
that they can advocate on your behalf that you’re compliant with
your mental health?
THE MOTHER: Honestly, is that a realistic question? If I got
--
[Child advocate]: Your Honor, I’m going to --
THE COURT: Sustained.
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In the interest of avoiding confusion, we stress that a parent’s failure to
cooperate with services will often be a relevant factor that the trial court may
consider during a termination proceeding. If a parent suffers from a drug and
alcohol addiction, and DHS presents testimony indicating that the parent has
taken no known action to address that addiction, the court is free to infer that
the addiction remains unresolved. However, there is a substantial difference
between making inferences based on circumstantial evidence and placing the
burden on a parent to prove that he or she has rectified DHS’s concerns. The
court’s statements in this case indicate that it engaged in the latter course of
conduct, which further justifies our decision to reverse the court’s termination
decree.16
Before concluding our review, we stress that we appreciate the difficulty
that these cases pose and that our trial courts must often resolve many such
cases in a very short period of time. We also appreciate that the children at
issue in these cases are deserving of permanence and stability, and that courts
must work to achieve these goals as quickly as possible in the children’s best
interests. However, courts must also work to protect parents’ constitutionally
protected rights to the care and custody of their children, and may not sacrifice
____________________________________________
N.T., 1/14/19, at 38-39.
16 Because we hold that the record does not support the trial court’s decision
to terminate Mother’s parental rights pursuant to Section 2511(a), we need
not consider whether the record supports the court’s decision to terminate
pursuant to Section 2511(b).
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those rights in the interest of achieving expedient results. In the case at bar,
DHS sought to terminate Mother’s parental rights only ten months after Child’s
adjudication of dependency and only eleven months after Child entered foster
care.17 The court then granted DHS’s request in part by relying on Mother’s
failure to produce sufficient evidence in her own defense. Given Mother’s
significant progress at the time of the hearing, and given that the burden of
proof rested solely on DHS, it appears DHS’s termination petition and the
court’s decision to grant termination was precipitous.
Based on the foregoing analysis, we conclude that the trial court abused
its discretion and committed an error of law by terminating Mother’s parental
rights to Child involuntarily. Thus, we reverse the court’s January 14, 2019
decree. Because Mother waived any challenge regarding the March 6, 2019
goal change, we affirm that order. We hasten to add that reversing the decree
does not mean that Child must return to Mother’s care. Child should remain
____________________________________________
17 The Juvenile Act contemplates that a child protective services agency will
have filed a petition to terminate parental rights once the subject child has
remained in placement for at least fifteen of the last twenty-two months. See
42 Pa.C.S.A. § 6351(f)(9) (“At each permanency hearing, a court shall
determine . . . [i]f the child has been in placement for at least 15 of the last
22 months . . . whether the county agency has filed or sought to join a petition
to terminate parental rights[.]”). We acknowledge that this is not a minimum
time that must elapse before an agency may file a termination petition. See
In the Interest of L.T., 158 A.3d 1266, 1279 (Pa. Super. 2017) (“It is
beyond cavil that the fifteen-to-twenty-month [sic] period outlined in § 6351
is not a prerequisite to a goal change, but rather, an aspirational target in
which to attain permanency.”). We mention it merely to illustrate our concern
with the speed with which DHS moved to terminate Mother’s parental rights
while she was making substantial progress towards reunification.
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in her current foster care placement for the time being. DHS may file a new
petition to terminate Mother’s parental rights, but we emphasize that the court
may not grant that petition unless DHS presents clear and convincing evidence
and develops a record establishing grounds to support termination pursuant
to Section 2511.
Decree reversed. Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/19
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