In the Int. of: A.H., Appeal of: N.F. ( 2023 )

J-S04016-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.F., MOTHER : No. 2815 EDA 2022
Appeal from the Order Entered October 21, 2022
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0000756-2019
IN THE INTEREST OF: A.N.E.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.F., MOTHER : No. 2816 EDA 2022
Appeal from the Decree Entered October 21, 2022
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000095-2021
IN THE INTEREST OF: A.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.F., MOTHER : No. 2817 EDA 2022
Appeal from the Order Entered October 21, 2022
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0001001-2019
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IN THE INTEREST OF: A.N.I.-E.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.F., MOTHER : No. 2818 EDA 2022
Appeal from the Decree Entered October 21, 2022
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000412-2021
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED MARCH 10, 2023
Appellant, N.F. (“Mother”), appeals from the decrees and orders entered
in the Philadelphia County Court of Common Pleas, granting the petition of
Appellee, Philadelphia County Department of Human Services (“DHS”), for
involuntary termination of Mother’s parental rights to her minor children, A.H.
and A.S. (“Children”), and changing the placement goal to adoption. We
affirm.
The relevant facts and procedural history of this appeal are as follows.
A.H. was born in January 2016. A.S. was born in June 2019. DHS was aware
of the family due to Mother’s history of untreated mental health problems.
Community Umbrella Agency (“CUA”) began providing in-home services for
the family on August 1, 2017. (See Dependency Petition for A.H., filed
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* Retired Senior Judge assigned to the Superior Court.
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5/8/19, at ¶5(c)). On December 3, 2018, DHS received a report that Mother
was shoplifting at a local store, and A.H. was with Mother at the time of the
theft. (Id. at ¶5(d)). Police arrested Mother, and the Commonwealth charged
her with retail theft and related offenses. (Id.)
On January 6, 2019, DHS received a report that Mother and A.H. were
involved in a serious automobile accident. (Id. at ¶5(f)). At the time of the
accident, A.H. was not secured in a car seat or using a seatbelt. (Id.) Mother
required hospitalization for injuries she suffered from the accident. (Id.)
Upon arriving at the hospital, Mother was visibly intoxicated. (Id.) Mother
lost consciousness, and hospital personnel needed to revive her with Narcan.
(Id.)
On April 18, 2019, police arrested Mother for new drug offenses. (Id.
at ¶5(q)). While incarcerated, Mother gave birth to A.S.1 (See Dependency
Petition for A.S., filed 6/19/19, at ¶5(b)). At the time of the delivery, Mother
tested positive for methadone. (Id. at ¶5(c)). On May 8, 2019, DHS filed a
dependency petition for A.H. The court adjudicated A.H. dependent on May
21, 2019. On June 19, 2019, DHS filed a dependency petition for A.S. The
court adjudicated A.S. dependent on June 24, 2019. In conjunction with the
dependency petitions, the court granted legal custody of Children to DHS. In
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1Despite their different initials, Children have the same father, E.S. (“Father”).
The court terminated Father’s parental rights on July 22, 2022, and he is not
a party to the current appeals.
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turn, DHS placed Children into kinship care with their paternal grandmother.
Children have remained with their paternal grandmother ever since. (See
N.T. Termination Hearing, 10/21/22, at 8-10).
Mother received single case plan objectives, including referrals to the
Achieving Reunification Center (“ARC”) for employment and housing, domestic
violence counseling, random drug testing, and a dual diagnosis assessment.
(Id. at 13). Due to Mother’s 2019 incarceration, CUA modified the objectives
to include only those programs that Mother could complete while incarcerated.
Mother did not substantially comply with her objectives.
On February 19, 2021, DHS filed a petition for the involuntary
termination of Mother’s parental rights to A.H. On July 22, 2021, DHS filed a
petition for the involuntary termination of Mother’s parental rights to A.S. The
court conducted a termination hearing on October 21, 2022. At the hearing,
the court received testimony from Mother and the CUA case manager.2
Following the hearing, the court entered decrees terminating Mother’s
parental rights to Children. The court entered separate permanency review
orders noting the change of Children’s goal to adoption. On November 7,
2022, Mother timely filed separate notices of appeal and concise statements
of errors. This Court consolidated the matters sua sponte on January 10,
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2 During her direct examination, Mother indicated that she was once again
incarcerated at the George Hill Correctional Facility. (N.T. Termination
Hearing at 26). This most recent incarceration commenced on January 27,
2022, and Mother’s expected release date is September 6, 2023. (Id.)
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2023.
Mother now raises two issues for this Court’s review:
Whether the trial court committed reversible error, when it
involuntarily terminated Mother’s parental rights where such
determination was not supported by clear and convincing
evidence under the Adoption Act, 23 Pa.C.S.A. §
2511(a)(1), (2), (5) and (8).
Whether the trial court committed reversible error when it
involuntarily terminated Mother’s parental rights without
giving primary consideration to the effect that the
termination would have on the developmental, physical and
emotional needs of [Children] as required by the Adoption
Act, 23 Pa.C.S.A. § 2511(b).
(Mother’s Brief at 8).
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
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Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165(2008)).
DHS filed a petition for the involuntary termination of Mother’s parental
rights on the following grounds:
§ 2511. Grounds for involuntary termination
(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:
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(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
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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.A. § 2511(a)(2), (b). “Parental rights may be involuntarily
terminated where any one subsection of Section 2511(a) is satisfied, along
with consideration of the subsection 2511(b) provisions.” In re Z.P., supra
at 1117.3
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 … 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.
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3 DHS also sought the involuntary termination of Mother’s parental rights
under Section 2511(a)(1), (5) and (8), but we need only analyze Section
2511(a)(2) for purposes of this appeal.
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In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Mother’s issues are related, and we address them together. Mother
contends that DHS did not present clear and convincing evidence to support
the termination of her parental rights to Children. Specifically, Mother asserts
that her absence from Children’s lives due to incarceration “is not, in itself,
conclusively determinative of the issue of parental abandonment.” (Mother’s
Brief at 14). Despite being incarcerated, Mother maintains that she “did not
demonstrate a settled purpose of relinquishing her parental rights to A.H. and
A.S.” (Id. at 15). Mother emphasizes her testimony from the termination
hearing, which established that she attempted to comply with her case plan
objectives by attending parenting classes and obtaining drug and alcohol
treatment. Mother insists that “her only outstanding obstacle to reunification
is her current incarceration, which will be resolved in September of 2023.”
(Id. at 16). Upon her release, Mother “intends to return home with a plan to
resume her life.” (Id. at 17).
Regarding Section 2511(b), Mother argues that “DHS did not establish
Mother lacked a bond with her children.” (Id. at 17). Mother claims that a
bond exists because “she was maintaining visitation with her children as
facilitated by paternal grandmother as well as phone contact.” (Id.) Based
upon the foregoing, Mother concludes that the court erred and abused its
discretion by terminating her parental rights. We disagree.
“The bases for termination of parental rights under Section 2511(a)(2),
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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 S.C.B., 990
A.2d 762, 771 (Pa.Super. 2010). Under Section 2511(a)(2), “the petitioner
for involuntary termination must prove (1) repeated and continued incapacity,
abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal
caused the child to be without essential parental care, control or subsistence;
and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super.
1998).
“Each case of an incarcerated parent facing termination must be
analyzed on its own facts, keeping in mind … that the child’s need for
consistent parental care and stability cannot be put aside or put on hold[.]”
Interest of K.M.W., 238 A.3d 465, 474 (Pa.Super. 2020) (en banc) (quoting
In re E.A.P., 944 A.2d 79, 84 (Pa.Super. 2008)). “The focus is on whether
the parent utilized resources available while in prison to maintain a
relationship with … her child. An incarcerated parent is expected to utilize all
available resources to foster a continuing close relationship with … her
children.” In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal
denied, 582 Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted).
“Importantly, a parent’s ‘recent efforts to straighten out [her] life’ upon
release from incarceration does not require that a court ‘indefinitely postpone
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adoption.’” Interest of K.M.W., supra at 474 (quoting In re Z.P., supra at
1125).
Under Section 2511(b), the court must consider whether termination
will best serve the child’s needs and welfare. In re C.P., 901 A.2d 516(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
Id. at 520 (internal citations omitted). “In this context, the court must take
into account whether a bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial relationship.”
In re Z.P., supra at 1121 (internal citations omitted). “The statute
permitting the termination of parental rights outlines certain irreducible
minimum requirements of care that parents must provide for their children,
and a parent who cannot or will not meet the requirements within a reasonable
time following intervention by the state, may properly be considered unfit and
have … her rights terminated.” In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super.
2001).
Instantly, the court received testimony from Tajanae Anderson, the CUA
case manager. After establishing the circumstances that led DHS to file the
dependency petitions, Ms. Anderson testified about Mother’s noncompliance
with her single case plan objectives. Specifically, Mother did not engage with
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her ARC referrals for housing and employment. (See N.T. Termination
Hearing at 13-14). Mother also failed to obtain a dual diagnosis assessment.
(Id. at 14). Although Mother did attend some parenting classes, she did not
complete this program. (Id.) According to Ms. Anderson, Mother did not
successfully complete any of her single case plan objectives by the time of the
termination hearing. (Id. at 15).
Ms. Anderson acknowledged that Mother was arrested five (5) times
over the life of this case. (Id. at 12). Nevertheless, CUA modified the single
case plan objectives to include only those programs that Mother could
complete while incarcerated. (Id. at 15). Due to Mother’s noncompliance
with her objectives, Ms. Anderson concluded that Mother failed to alleviate the
circumstances that brought Children under the care of DHS. (Id.) Regarding
the bond between Children and Mother, Ms. Anderson said she had “never
seen them interact.” (Id. at 16). Ms. Anderson further opined that Children
would not suffer irreparable harm if the court terminated Mother’s parental
rights. Ms. Anderson emphasized that Children “look at the paternal
grandmother as mom,” and the most appropriate permanency goal for
Children is “to allow paternal grandmother to adopt them.” (Id.)
Mother also testified and disputed Ms. Anderson’s claims about the
single case plan objectives. Mother insisted that she completed parenting
classes and a drug and alcohol program while incarcerated. (Id. at 30-31).
Regarding employment, Mother stated that she was not incarcerated in 2020,
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but the COVID-19 pandemic thwarted her efforts to find a job. (Id. at 28).
Further, Mother discussed her efforts to visit with Children. Mother testified
that the paternal grandmother facilitated visitation throughout 2020.
However, Mother could not provide a precise date for her last visit with
Children claiming, “I think it was like the end of 2021—2020.” (Id. at 29).
The court considered the testimony from the termination hearing and
found Ms. Anderson to be credible. When explaining its decision to terminate
Mother’s parental rights, the court emphasized the need for permanency in
Children’s lives:
The evidence reflects that [Children] have been in care for
30 months, since approximately May, 2019. Aggravated
circumstances were found regarding the other children.[4]
The testimony reflects that single case plan objectives were
established for reunification.
While Mother has been arrested several times and in various
institutions she was released for, according to her
testimony, approximately one year. Although she states
that she did complete some of the single case plan
objectives I don’t have any evidence of that. While she
appears to have in place a plan that she would like to pursue
for—once she’s released, her release date is not for another
year. These children need permanency.
While [Ms. Anderson] has not been able to opine regarding
a bond with their mother, the opinion is that the children
are bonded with the paternal grandmother. She has a good
relationship with them, and she has been the caretaker of
these children almost since the time of initial placement.
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4 On November 5, 2019, the court entered an aggravated circumstances order
finding that Mother had her parental rights terminated to other children.
Mother confirmed this fact at the termination hearing. (See N.T. Termination
Hearing at 34-35).
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These children deserve permanency. Again, I have no
evidence of Mother completing the single case plan
objectives, notwithstanding the barriers that she states
regarding incarceration and/or the pandemic.
I find it would be in the children’s best interest to be freed
for adoption so that they can be—continue to be cared for
by the person who is currently providing [for] their
developmental, physical, and emotional needs and welfare,
and that is their … paternal grandmother.
(N.T. Termination Hearing at 39-40). We accept the court’s analysis, which is
supported by the record.
On this record, the court did not err in determining that Mother’s
incapacity caused Children to be without essential parental care, and the
causes of the incapacity cannot or will not be remedied. See Interest of
Lilley, supra. Mother’s parental deficiencies predate her most recent
incarceration, and any plan to straighten out her life upon her release from
incarceration does not require an indefinite postponement of adoptions for
Children. See Interest of K.M.W., supra. Additionally, regardless of
whether a bond exists between Mother and Children, terminating Mother’s
parental rights would not destroy existing, necessary, and beneficial
relationships for Children. See In re Z.P., supra. Based upon the foregoing,
our review of the record confirms that clear and convincing evidence
supported termination of Mother’s parental rights under Sections 2511(a)(2)
and (b). Id. Consequently, we affirm the decrees terminating Mother’s
parental rights and the orders changing the placement goals to adoption.
Decrees and orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2023
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