In the Interest of: K.Z.G., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.Z.G., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.T., MOTHER
No. 1924 EDA 2016
Appeal from the Order Entered May 24, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000246-2016
FID 51-FN-472320-2009
IN THE INTEREST OF: B.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.T., MOTHER
No. 1928 EDA 2016
Appeal from the Order Entered May 24, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000245-2016
FID 51-FN-472320-2009
BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED JANUARY 09, 2017
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*
Former Justice specially assigned to the Superior Court.
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M.T. (“Mother”), appeals from the decrees entered May 24, 2016 in
the Philadelphia County Court of Common Pleas, which involuntarily
terminated her parental rights to her sons K.Z.G., born in August 2007, and
B.T., born in September 2014.1 We affirm.
On August 1, 2014, the Philadelphia Department of Human Services
(“DHS”) received a General Protective Services (“GPS”) report alleging that
Mother was in a mental health facility, had left K.Z.G. with an inappropriate
caregiver, and lacked appropriate housing. That same day, DHS obtained an
order of protective custody (“OPC”) and placed K.Z.G. in a foster home. On
August 4, 2014, the trial court held a shelter care hearing, after which it
lifted the OPC and ordered K.Z.G. temporarily committed to the custody and
care of DHS. The trial court subsequently held an adjudicatory hearing on
September 9, 2014, after which K.Z.G. was adjudicated dependent and
committed to the custody and care of DHS. At that time, DHS and the trial
court were aware that Mother had a significant drug history and had failed to
care for her children in the past.
On September 16, 2014, DHS received a GPS report stating that
Mother tested positive for phencyclidine (“PCP”) at B.T.’s birth the day
before, had not received any prenatal care, had a history of failing to care
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1
The trial court also terminated the parental rights of M.G., K.Z.G.’s
putative father, and any putative father of B.T. Neither M.G. nor any
putative father of B.T. has filed an appeal.
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for her children, and had a history of drug abuse. The GPS report also
provided that B.T. had tested positive for PCP. When B.T. was released from
the hospital on January 9, 2015, DHS obtained an OPC for B.T. On January
12, 2015, the trial court held a shelter care hearing, after which it lifted the
OPC and ordered B.T. temporarily committed to the custody and care of
DHS. The trial court subsequently held an adjudicatory hearing on January
21, 2015, after which B.T. was adjudicated dependent and committed to the
custody and care of DHS.
The trial court, through a Master, held permanency review hearings
regarding the placement of K.Z.G. and B.T. throughout 2015. Mother was
incarcerated in December 2015 and she is not eligible for release until May
2017.
On March 16, 2016, DHS filed petitions for a goal change to adoption
and petitions seeking involuntarily termination of Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). On May 24,
2016, the trial court held a hearing on the termination petitions. At the
hearing, the trial court heard testimony from Karima Muhammad, a
Community Umbrella Agency case manager from Asociación Puertorriqueños
en Marcha (“APM”), and Mother. Thereafter, the trial court entered decrees
terminating Mother’s parental rights to K.Z.G. and B.T.
On June 21, 2016, Mother timely filed a notice of appeal, together with
a statement of matters complained of on appeal, pursuant to Pennsylvania
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Rule of Appellate Procedure 1925 (“Rule 1925”). The trial court issued a
Rule 1925(a) opinion. See Trial Ct. Op., 8/3/16, at 1 (“1925(a) Op.”).
Mother raises five issues on appeal:
1. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of Mother, M.T. pursuant
to 23 Pa. C.S.A. sections 2511(a)(1) where Mother
presented evidence that she made efforts to perform her
parental duties.
2. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of Mother, M.T. pursuant
to 23 Pa. C.S.A. sections 2511(a)(2) where Mother
presented evidence that she has remedied her situation by
participating in a drug and alcohol program and parenting
classes.
3. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of Mother, M.T. pursuant
to 23 Pa. C.S.A. sections 2511(a)(5) where evidence was
provided to establish that the child was removed from the
care of the Mother and Mother is capable of caring for the
child when released from incarceration.
4. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of Mother, M.T. pursuant
to 23 Pa. C.S.A. sections 2511(a)(8) where evidence was
presented to show that Mother is capable of caring for the
child when released from incarceration.
5. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of Mother, M.T. pursuant
to 23 Pa. C.S.A. sections 2511(b) where evidence was
presented that DHS never observed the child with the
Mother at any time.
Mother’s Br. at 7.
We consider Mother’s issues mindful of our well-settled standard of
review:
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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).
Termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis. We have stated:
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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). The
petitioner must “prove by clear and convincing evidence that [the] asserted
[statutory] grounds for seeking the termination of parental rights are valid.”
In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009). This Court need only
agree with the trial court’s determination under any one subsection of
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section 2511(a), along with section 2511(b), in order to affirm the
termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa.Super.
2004) (en banc).
We conclude that the trial court properly terminated Mother’s parental
rights under sections 2511(a)(2) and (b), which provide:
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to
be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied
by the parent.
***
(b) Other considerations.—The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the
parent. With respect to any petition filed pursuant to
subsection (a)(1), (6) or (8), the court shall not consider
any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(2), (b).
To terminate parental rights under section 2511(a)(2), the moving
party must produce clear and convincing evidence regarding the following
elements: “(1) repeated and continued incapacity, abuse, neglect or refusal;
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(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.” In re Adoption of
M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003).
Our Supreme Court has instructed that incarceration:
while not a litmus test for termination, can be
determinative of the question of whether a parent is
incapable of providing “essential parental care, control or
subsistence” and the length of the remaining confinement
can be considered as highly relevant to whether “the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent,”
sufficient to provide grounds for termination pursuant to
23 [Pa.C.S.] § 2511(a)(2). [See In re: E.A.P., 944 A.2d
79, 85 (Pa. Super. 2008)] (holding termination under §
2511(a)(2) supported by mother’s repeated incarcerations
and failure to be present for child, which caused child to be
without essential care and subsistence for most of her life
and which cannot be remedied despite mother’s
compliance with various prison programs).
In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012) (some internal
citations omitted).2
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2
Further, the Supreme Court stated that:
If a court finds grounds for termination under subsection
(a)(2), a court must determine whether termination is in
the best interests of the child, considering the
developmental, physical, and emotional needs and welfare
of the child pursuant to § 2511(b). In this regard, trial
courts must carefully review the individual circumstances
for every child to determine, inter alia, how a parent’s
(Footnote Continued Next Page)
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Mother argues that the trial court abused its discretion by terminating
her parental rights. Mother’s Br. at 15. According to Mother, she has
“participated in several programs, while incarcerated, to meet her goals and
objectives.” Id. at 16. With respect to all four grounds for termination
considered by the trial court, Mother asserts that she cooperated with DHS
in order to meet a number of objectives, including participation in drug and
alcohol counseling, parenting classes, and employment through the prison
kitchen. Id. at 15-18.
The trial court found that termination was appropriate under section
2511(a)(2). In support of its conclusion, the trial court cited the September
15, 2015 suspension of Mother’s visits with the children after she appeared
intoxicated at the visits, which were never reinstated; 3 Mother’s refusal to
participate in drug screens and a mental health evaluation; and Mother’s
incarceration since December 2015. 1925(a) Op. at 4. The trial court also
found that Mother made no effort to complete any of DHS’s and APM’s
single-case-plan objectives, which required Mother to “1) complete drug and
alcohol treatment, 2) complete mental health treatment, 3) obtain
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(Footnote Continued)
incarceration will factor into an assessment of the child’s
best interest.
In re Adoption of S.P., 47 A.3d at 830-31.
3
Mother’s resumption of visits with the children was conditioned on
her compliance with random drug screens and treatment.
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appropriate housing, 4) comply with random drug screens, 5) complete [an]
anger management class . . . and, 6) complete [a] parenting class.” 4 Id. at
3.
The trial court’s credibility determinations and factual findings are
supported by the record and it did not abuse its discretion by terminating
Mother’s parental rights under section 2511(a)(2). While Muhammad
recognized that Mother is enrolled in a parenting class in prison, she
confirmed that Mother has never completed drug and alcohol treatment,
mental health treatment, or anger management. N.T, 5/24/16, at 23-24.
Muhammad also stated that Mother did not make herself available to APM,
was not compliant with court-ordered random drug screens, and did not
avail herself of drug and alcohol treatment until she was incarcerated. Id.
at 25-27. Further, DHS entered into evidence reports showing that Mother
failed two drug screens, failed to appear without excuse for two others, and
possibly tampered with another drug screen. Id. at 26. The evidence
further established that Mother failed to comply with the court’s permanency
plan and that her visits with the children were suspended and remained
suspended because she did not participate in drug screens and treatment.
Id. at 28.
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4
Although the trial court made this finding during its discussion of
section 2511(a)(1), it also is relevant to the issue of whether termination is
proper under section 2511(a)(2).
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Mother testified that, during her incarceration, she is receiving drug
and alcohol treatment and taking a parenting class. Id. at 38. However,
Mother did not present evidence that she attempted to comply with her
objectives before incarceration. We have long held that “adequate parenting
requires ‘action as well as intent’ . . . . [as] [p]arents are required to make
diligent efforts toward the reasonably prompt assumption of full parental
responsibilities.”5 In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002)
(quoting In re J.W., 578 A.2d 952, 959 (Pa.Super. 1990)). Further, “a
parent’s vow to cooperate, after a long period of uncooperativeness
regarding the necessary or availability of services, may properly be rejected
as untimely or disingenuous.” Id. at 340. Here, the evidence shows that:
Mother failed to raise her children in a safe environment, as she lacked
adequate housing and abused drugs; Mother continued to lack adequate
housing and abuse drugs after the children were removed from her custody;
and she is now incapable of caring for them during her incarceration. When
presented with help from DHS and APM, she rejected their assistance and
refused to make any effort towards meeting her objectives, attempted to
conceal her drug usage from the court, and failed to comply with minimum
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5
“[A] parent’s basic constitutional right to the custody and rearing of
his or her child is converted, upon the failure to full 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 847, 856 (Pa.Super. 2004).
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objectives of screening and treatment to resume visitation with the children.
Under similar circumstances, we have upheld the termination of parental
rights, as this pattern of behavior, regardless of incarceration, demonstrates
incapacity to properly parent.6 In re C.L.G., 956 A.2d 999, 1008 (Pa.Super.
2008) (en banc) (evaluating parent’s pattern of pre-incarceration behavior
and possible effect on child). In sum, we conclude that the record supports
the trial court’s findings of fact and the trial court did not abuse its discretion
in terminating Mother’s parental rights under section 2511(a)(2).
Next, we review the termination of Mother’s parental rights pursuant
to section 2511(b). When a trial court determines that grounds for
termination exist under section 2511(a), the trial court must then consider
“whether termination of parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child[ren].” In re M.T.,
101 A.3d 1163, 1181 (Pa.Super. 2014). While section 2511(a) focuses on
the parent’s conduct, section 2511(b) focuses on the child. In re C.L.G.,
956 A.2d at 1008. “We have emphasized that while a parent’s emotional
bond with his or her child is a major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many factors to be considered
by the trial court when determining what is in the best interest of the child.”
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6
Further, “Pennsylvania law does not compel [continued efforts at
reunification] just because an incarcerated parent participates in prison
programs . . . . [as t]he complete circumstances of the case must be
considered.” In re Z.P., 994 A.2d 1108, 1125 (Pa.Super. 2010).
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In re A.D., 93 A.3d 888, 897 (Pa.Super. 2014). “In cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists.” In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008).
“The trial court should also examine the intangibles such as the love,
comfort, security, and stability the child might have with the foster parent.”
Id. at 763.
Mother argues that the trial court abused its discretion by terminating
her parental rights pursuant to section 2511(b). According to Mother, DHS
did not present sufficient evidence concerning the effect, or lack thereof,
that termination would have her children. Mother’s Br. at 19. Mother
asserts that Muhammad never observed interactions between Mother and
the children, and “[t]herefore, it is naturally impossible for the social worker
to make an accurate assessment or recommendation as to the parental bond
between Mother and the children.” Id. Further, Mother claims that
Muhammad could not state “there would be no irreparable harm to the
children when she never saw [them] interact with . . . Mother.” Id. We
disagree.
The trial court found that termination of Mother’s parental rights was
appropriate under section 2511(b). In support of its conclusion, the trial
court cited the children’s placement in pre-adoptive homes, where their
foster parents have met their daily needs. 1925(a) Op. at 5. The trial court
also found that the children lack a parent-child bond with Mother, as Mother
refused to participate in the children’s services and K.Z.G. never asked to
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visit with Mother. Id. Based on those facts, the trial court found that
“neither child would suffer irreparable harm if [Mother’s] parental rights
were terminated,” and “it would be in the best interest of both children [if
Mother’s] parental rights were terminated and they were freed for adoption.”
Id. at 6.
We conclude that the record supports the trial court’s determination
that there was no bond between Mother and the children that, if severed,
would be detrimental to the children, and that termination of Mother’s
parental rights would best serve the needs and welfare of the children.
Muhammad testified that Mother made no effort to resume visits with the
children, let alone participate in any of their services, and that it was in the
children’s best interests to terminate Mother’s parental rights. N.T.,
5/24/16, at 26-27, 29. Further, Muhammad testified that K.Z.G. stated “he
didn’t like [Mother[,] . . . [Mother] made him angry,” and he never asked to
visit with Mother. Id. at 29-30. Muhammad also testified that the foster
parents met the children’s daily needs. Id. at 29. She also believed that
neither K.Z.G. nor B.T., whom Mother has not seen in at least a year, has a
bond with their Mother, and that neither child would suffer irreparable harm
if the trial court terminated Mother’s parental rights.7 Id. Mother also
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7
We have long held that section 2511(b) “does not require a formal
bonding evaluation” and “[w]hen conducting a bonding analysis, . . . court[s
are] not required to use expert testimony.” Z.P., 994 A.2d at 1121. Social
(Footnote Continued Next Page)
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testified that she had not seen the children for approximately one year. Id.
at 39. Therefore, the trial court did not abuse its discretion by terminating
Mother’s parental rights pursuant to section 2511(b).
Accordingly, we affirm the decrees terminating Mother’s parental rights
based on section 2511(a)(2) and (b).
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2017
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(Footnote Continued)
workers and caseworkers may offer their evaluations as to the parent-child
bond. Id.
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