In the Interest of: D.F. a/k/a D.A.F., Jr. a Minor ( 2018 )

J-S26002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D. F., A/K/A IN THE SUPERIOR COURT OF
D. A. F., JR., A MINOR PENNSYLVANIA
APPEAL OF: D. H., MOTHER
No. 3561 EDA 2017
Appeal from the Decree Entered October 11, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000606-2017
CP-51-DP-0002436-2013
IN THE INTEREST OF: D. O., A/K/A IN THE SUPERIOR COURT OF
D. M. L. O., A MINOR PENNSYLVANIA
APPEAL OF: D. H., MOTHER
No. 3563 EDA 2017
Appeal from the Decree Entered October 11, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000608-2017
CP-51-DP-0002435-2013
FID: 51-FN-004636-2013
IN THE INTEREST OF: D. H. F., A/K/A IN THE SUPERIOR COURT OF
D. A. M. F., A MINOR PENNSYLVANIA
APPEAL OF: D. H., MOTHER
No. 3565 EDA 2017
Appeal from the Decree Entered November 1, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000607-2017
CP-51-DP-0002474-2013
FIN: 51-FN-004636-2013
J-S26002-18
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 26, 2018
D.H. (“Mother”) appeals from the decrees entered on October 11, 2017
that granted the petitions filed by the Philadelphia County Department of
Human Services (“DHS”) to involuntarily terminate her parental rights to
D.H.F. (born in October of 2013), D.O. (born in May of 2011), and D.F. (born
in July of 2012) (collectively “Children”), pursuant to sections 2511(a)(1), (2),
(5), (8), and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938.1, 2, 3 After
careful review of the record and applicable law, we affirm.
The trial court set forth the following findings of fact in its Pa.R.A.P.
1925(a) opinion:
On December 5, 2013, [DHS] received an Emergency
General Protective Services (“EGPS”) report alleging Child D.H.F.
… was hospitalized. The EGPS report indicated Child [D.H.F.]
would be discharged in approximately one week. The [EGPS]
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* Former Justice specially assigned to the Superior Court.
1 The parental rights of Children’s father, D.A.F., Sr. (“Father”), were
termintated by separate decrees entered on the same date. Father is not a
party to this appeal.
2 A guardian ad litem (GAL), Lisa Visco, Esq., and a child advocate, Catherine
Stewart, Esq., were appointed to represent the best interests and legal
interests of Children. Both attorneys participated in the termination hearing.
3 Permanency review orders were also entered on October 11, 2017, changing
the permanency goal for Children to adoption. In her Rule 1925(b) concise
statement of errors complained of on appeal, Mother did not specifically
challenge the change of the permanency goal to adoption; thus, she has
waived that issue on appeal. Krebs v. United Refining Co., 893 A.2d 776,
797 (Pa. Super. 2006) (holding any issue not raised in a Rule 1925(b)
statement is deemed waived)).
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report alleged Child [D.H.F.] suffered from severe respiratory
distress. Child [D.H.F.] would be sent home with an oxygen tank
upon discharge. The EGPS report alleged Child D.O. …, Child D.F.
… and Mother visited Child [D.H.F.] at the hospital infrequently.
The [EGPS] report alleged Mother had indicated an inability to care
for [Child] D.H.F. The EGPS report also alleged Mother was
unemployed[,] used drugs[,] and that [Child D.H.F.’s] twin sibling
died in the Neonatal Intensive Care Unit (“NICU”) one month
before[,] in November [of] 2013.
On December 11, 2013, DHS visited Mother’s home. During
the visit, Mother indicated the home was temporary and she was
presently only caring for Child D.F. Child D.H.F. was still in the
hospital. Child D.O. was residing with relatives. [DHS] observed
the home to be unclean and Mother’s chain smoking filled the
house with cigarette smoke. On December 11, 2015, DHS
obtained an Order for Protective Custody (“OPC”) for Children
D.O. and D.F. On December 16, 2013, DHS obtained an OPC for
Child D.H.F. On December 18, 2013, Children [sic] D.O. was
adjudicated dependent. On January 8, 2014, Children D.F. and
D.H.F. were adjudicated dependent. In September [of] 2016,
Mother abducted Child D.H.F. and Child D.F. DHS did not know
the whereabouts of Child D.H.F. and Child D.F. until August [of]
2017. Mother did not abduct Child D.O., who remained with his
foster parent. The underlying petition[s] to terminate Mother’s
parental rights to Children [were] filed on May 31, 2017[,]
because Mother had not meet [sic] her Single Case Plan (“SCP”)
objectives. [At the termination hearing o]n October 11, 2017, this
[c]ourt ruled to terminate Mother’s parental rights to the Children
pursuant to 23 Pa.C.S.[] § 2511(a)(1)[, ](2)[, ](5)[ and ](8) and
found that termination of Mother’s parental rights was in the best
interests of the Children pursuant to 23 Pa.C.S.[] § 2511(b).
Mother filed a notice of appeal as to each child on November 1,
2017.[4]
Trial Court Opinion (“TCO”), 2/16/18, at 2-3 (citations to record omitted).
In her brief, Mother presents the following issues for our review:
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4The appeals at 3561, 3563 and 3565 EDA 2017 were consolidated sua sponte
by per curiam order of this Court, as all of these matters involve related parties
and issues. Order, 11/21/17.
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1. Whether the trial court committed reversible error, when it
involuntarily terminated [M]other’s parental rights where such
determination was not supported by clear and convincing
evidence under the Adoption Act, 23 Pa.C.S.[] § 2511(a)(1),
(2), (5) and (8)[?]
2. Whether the trial court committed reversible error when it
involuntarily terminated [M]other’s parental rights without
giving primary consideration to the effect that the termination
would have on the developmental, physical and emotional
needs of the children as required by the [A]doption [A]ct, 23
Pa.C.S.[] § 2511(b)[?]
3. Whether the trial court erred because the evidence was
overwhelming that [M]other demonstrated a sincere and
continued interest in maintaining a parent-child relationship
with her children[?]
Mother’s Brief at 8.
We review an appeal from the termination of parental rights under 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., … 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
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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 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, 826-27 (Pa. 2012).
In termination cases, the burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. In re S.H., 879 A.2d 802, 806 (Pa. Super. 2005).
We have previously stated:
The standard of clear and convincing evidence is defined as
testimony that is so clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.
In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation
marks omitted).
Termination of parental rights is governed by section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
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the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interest
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) (citing 23 Pa.C.S. § 2511;
other citations omitted).
This Court must agree with only one subsection of 2511(a), in addition
to section 2511(b), in order to affirm the termination of parental rights. See
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Herein, we
review the decree pursuant to section 2511(a)(1) and (b), which provide as
follows:
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.
…
(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)(1) and (b).
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We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(1). In In
re C.M.S., 832 A.2d 457 (Pa. Super. 2003), we noted:
To satisfy Section 2511(a)(1), the moving party must produce
clear and convincing evidence of conduct sustained for at least the
six months prior to the filing of the termination petition, which
reveals a settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties.
Id. at 461 (quoting Matter of Adoption of Charles E.D.M., II, 708 A.2d 88,
91 (Pa. 1998)). In C.M.S., we further acknowledged the following statement
by our Supreme Court:
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A child
needs love, protection, guidance, and support. These needs,
physical and emotional, cannot be met by a merely passive
interest in the development of the child. Thus, this court has held
that the parental obligation is a positive duty which requires
affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association with
the child.
Because a child needs more than a benefactor, parental duty
requires that a parent “exert himself to take and maintain a place
of importance in the child’s life[.”]
C.M.S., 832 A.2d at 462 (quoting In re Burns, 379 A.2d 535, 540 (Pa.
1977)).
Here, Mother claims that she “never evidenced a settled purpose of
relinquishing her rights to her children.” Mother’s Brief at 16. Contrary to
Mother’s assertion, the trial court found that Mother failed to perform her
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parental duties, which established grounds for termination under 23 Pa.C.S.
§ 2511(a)(1), and stated:
Child D.O. was born [in] May [of] 2011 and adjudicated
dependent [in] December [of] 2013. Child D.F. was born [in] July
[of] 2012 and adjudicated dependent [in] January [of] 2014.
Child D.H.F. was born [in] October [of] 2013 and adjudicated
dependent [in] January [of] 2014. The record clearly reflect[s]
Mother’s ongoing inability to provide care for or control of the
Children and Mother’s failure to remedy the conditions that
brought the Children into care. Specifically, Mother made
insufficient and inconsistent efforts to meet her SCP objectives,
which included [c]ourt[-]ordered random drug testing, completing
anger management classes and participating in supervised
visitation….
TCO at 4-5.
At the termination hearing, Ms. Muniyra Muhammad, an assigned
Community Umbrella Agency (“CUA”) Representative, testified that Mother’s
SCP objectives included: obtaining housing, obtaining employment, attending
supervised visits with Children, completing a parenting capacity evaluation
(“PCE”), and obtaining mental health treatment. N.T. Termination, 10/11/17,
at 10-11. According to Mother, she completed the PCE, was compliant with
mental health services and random drug testing, is self-employed, and applied
for housing in Johnstown, Pennsylvania. See Mother’s Brief at 17; N.T.
Termination at 22-23, 27-28, 48-50. Based on our review, however, the
record clearly belies Mother’s bald assertions.
Contrary to Mother’s claim that she completed the PCE, Ms. Muhammad
testified that, in September of 2016, Mother had completed only the first half
of her PCE, before she fled with Child D.F. and Child D.H.F., while under court
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supervision, to live in Virginia.5 N.T. Termination at 11-12. To date, Mother
has never completed the PCE. Id. at 11. Moreover,
Ms. Muhammed testified Mother had not reached other SCP
objectives. Specifically, Mother was unemployed, did not obtain
adequate housing and missed visits with the Children. Mother’s
testimony indicated that her employment was sporadic and that
she had not found suitable housing for her and her Children.
Mother testified that she was self-employed but did not describe
her occupation and testified that she missed visits due to a work
injury.
TCO at 6 (citations to record omitted).6
The trial court found the testimony of the CUA representatives to be
credible and accorded it great weight. Id. To the contrary, the court did not
find Appellant’s testimony to be credible. N.T. Termination at 90. Based on
the testimony at the termination hearing, as well as the documents entered
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5 The trial court explained:
[DHS] did not learn the whereabouts of Mother and Children D.F.
and D.H.F. until August [of] 2017. The record indicated that
Mother refused to provide information about her whereabouts to
DHS. During this time, Child D.O. lived with grandparents in
Philadelphia. During the hearing, Mother testified that she
absconded with Child D.F. and Child D.H.F. because a paramour’s
father, a DHS employee, threatened to take all of her children.
Ms[.] Muhammed subsequently testified that this matter was
made known to DHS by Mother and that the conflict had been
resolved in September [of] 2016[,] but that Mother did not return
with D.H.F. and D.F. until August [of] 2017.
TCO at 6 (citations to record omitted).
6 Trish Kinkle, another assigned CUA Representative, also testified that Mother
failed to meet her SCP objectives. Specifically, she noted Mother failed to
obtain employment and housing, and that she failed to complete “family
school.” Id. at 7.
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into evidence, the trial court concluded that there was clear and convincing
evidence to terminate Mother’s parental rights under Section 2511(a)(1). We
deem the trial court’s determinations to be supported by sufficient, competent
evidence in the record.
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to reviewing whether the requirements of subsection (b)
are met. 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.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court 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 “intangibles 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. 1992)],
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).
Here, Mother argues that to sever her bond with her children would
cause irreparable harm. Mother’s Brief at 20. At the termination hearing,
Mother asserted that she “just want[s] to be given a chance to prove … [she’s]
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worthy of being … a parent.” N.T. Termination at 69. Mother also expressed
that she loves her children and that she should be given a chance to prove to
them that she is “worth it.” Id. at 68-69. We have previously stated: “Above
all else … adequate consideration must be given to the needs and welfare of
the child. A parent’s own feelings of love and affection for a child, alone, do
not prevent termination of parental rights.” In re Z.P., 994 A.2d 1108, 1121
(Pa. Super. 2010) (citing In re L.M., 923 A.2d at 512) (internal quotation
marks and citation omitted)).
Moreover, Ms. Visco, as GAL, stated her opinion that “the children’s best
interest[s] would be best met by staying with paternal grandmother, who has
been a constant resource for them and has taken care of them. All the children
are together there, and there would be no detrimental harm to them if
[Mother’s] rights were terminated.” N.T. Termination at 84. Ms. Stewart,
Children’s advocate, agreed and added “these children have been in a state
of instability going back almost four years, since December of 2013, and … it
would be in their best interest to have [Mother’s] rights terminated, so that
they can have stability and permanency.” Id.The trial court also recognized that a bond exists between Children and
their paternal grandmother and that the paternal grandmother is the person
providing Children with their basic needs. TCO at 7. It stated from the bench:
I have to look at the general factors which indicate what’s in the
best interest of the children…. [O]ne of the general factors is the
character and the fitness of the parties. I find that the character
of [Mother] … is lacking. [Her] fitness is lacking. The housing is
lacking.
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…
The ability to adequately care for the child is another general
factor that has to be considered when considering the best interest
of the child, and neither [F]ather [] nor [M]other has the ability to
adequately care for these children at this time.
And, even by [M]other’s own testimony, she doesn’t have the
financial wherewithal … needed to provide for [Children].
In fact, the person providing all those needs [–] the housing and
the financial, the medical needs of the children – are being
performed by the paternal grandmother.
And, specifically, the parental duties of these three children … the
everyday parental duties are being performed by one person, and
that is paternal grandmother in this case, and those
considerations are given great weight by this [c]ourt….
N.T. Termination at 92-93. Finally, the court acknowledged that, “[a]lthough
Mother loved her Children, her judgment was poor in that by absconding with
Child D.F. and Child D.H.F.[,] she created additional instability.” TCO at 7.
Consequently, the court concluded that termination of Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(b) would not have a detrimental effect on
Children and that it is in Children’s best interests. Id. at 8.
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Children’s needs and
welfare, and the absence of any bond with Mother, we conclude that the court
did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d at 826-
27. Accordingly, we affirm the trial court’s decrees terminating Mother’s
parental rights to Children.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/18
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