In The Interest of: M.R.C., a Minor ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.R.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.R., MOTHER
No. 4 EDA 2015
Appeal from the Order Entered November 25, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000360-2013
CP-51-DP-0002282-2011
IN THE INTEREST OF: S.J.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.R., MOTHER
No. 5 EDA 2015
Appeal from the Order Entered November 25, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0000361-2013
CP-51-DP-0002283-2011
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 28, 2015
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Appellant, R.R. (Mother), appeals from the November 25, 2014
decrees involuntarily terminating her parental rights to her twin daughters,
M.R.C. and S.J.C. (the Children).1 After careful review, we affirm.
The record reveals the following factual and procedural history, in
relevant part. The Children were born prematurely in March 2011, and they
suffer from chronic lung disease. N.T., 10/8/14, at 22, 24. As a result, the
Children are prescribed daily medication. Id. at 24. In addition, S.J.C.
suffers from a blood disorder and a weak digestive system. Id. Mother
received in-home assistance with the Children from the Philadelphia
Department of Human Services, Children and Youth Division (DHS), among
other agencies, including, but not limited to, medical/nursing assistance. 2
Id. at 22.
In July 2011, DHS received a report that M.R.C. was failing to thrive.
Id. On November 7, 2011, following a weekend visit of the Children with
D.L. (Father), a visit that Mother permitted, DHS convinced Mother to take
the Children to the hospital, where they were diagnosed with respiratory
syncytial virus (RSV) and infections in their lungs and breathing passages.
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1
D.L., the Children’s biological Father did not appeal the decrees terminating
his parental rights.
2
Mother testified that she has an older son, age eight, and an older
daughter, age six, who are in her custody. N.T., 11/25/14, at 25.
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Trial Court Opinion, 3/3/15, at 2.3 Upon discharge from the hospital on
November 14, 2011, the DHS caseworker filed an application for protective
custody “to ensure the safety of the [C]hildren.” Application for Protective
Custody, 11/14/11. That same day, the trial court granted DHS’s application
pursuant to 42 Pa.C.S.A. § 6324, on the basis that “continuation in the home
would be contrary to the health, safety and welfare” of the Children, and the
Children were placed in the custody of DHS. Id. On December 12, 2011,
the trial court adjudicated the Children dependent. Id. They reside
together in a pre-adoptive medical foster home. N.T., 10/8/14, at 24, 26.
On June 20, 2013, DHS filed separate petitions for a goal change to
adoption and for the involuntary termination of Mother’s and Father’s
parental rights. The trial court held hearings on the petitions on October 8,
2014, and November 25, 2014, during which the following witnesses
testified: Dr. William Russell, who performed a parenting capacity evaluation
with respect to Mother; Janet Thurston, DHS caseworker; Becky Rossi,
Bethanna Foster Care Agency caseworker; Father; and Mother.
On November 25, 2014, by separate decrees, the trial court
involuntarily terminated Mother’s and Father’s parental rights to the Children
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). On December
22, 2014, Mother filed pro se notices of appeal and concise statements of
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3
The trial court’s Rule 1925(a) opinion does not contain pagination, for ease
of review we have assigned each page a corresponding page number.
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errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a)(2)(i), which this Court consolidated sua sponte.4 The
trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on March 3, 2015.
On appeal, Mother presents the following issues for our review.
1. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
[M]other … pursuant to 23 Pa.C.S.A. [§] 2511(a)(1)
where [M]other presented evidence that she
consistently tried to perform her parental duties and
met all of her FSP goals[?] Mother was consistently
visiting with her children and attended medical
appointments throughout the length of her children’s
placement. The record does not establish that
mother evidenced a settled purpose to relinquish her
parental rights nor does the record establish that she
was unable to perform her duties with adequate
services in place to help her[?]
2. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
[M]other … pursuant to 23 Pa.C.S.A. [§] 2511(a)(2)
where mother presented evidence that she has
remedied her situation by meeting all of her [FSP]
goals and has the present capacity to care for her
children just as she cares for her other two children
who live with her currently[?]
3. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
[M]other … pursuant to 23 Pa.C.S.A. [§] 2511(a)(5)
where evidence was provided to establish that
mother voluntarily accepted services from different
agencies including DHS and that she is capable of
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4
On April 9, 2015, Mother’s trial counsel filed an application to withdraw as
counsel with this Court, which we granted by order filed on April 21, 2015.
On April 30, 2015, the trial court appointed new counsel to represent Mother
on appeal.
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caring for her children with these services just as she
is capable of caring for her two other children that
are in her care who also have medical issues[?]
4. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
[M]other … pursuant to 23 Pa.C.S.A. [§] 2511(a)(8)
where evidence was presented to show that [M]other
is capable of caring for her children after meeting all
her FSP goals[?] No evidence was presented that
mother would be unable to care for her children with
appropriate support and services in her home.
5. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
[M]other … pursuant to 23 Pa.C.S.A. [§] 2511(b)
evidence was presented that established the children
lived with [M]other for [] several months and mother
consistently visited and attended family school with
her children to maintain her parental bond with her
children[?]
Mother’s Brief at 7-8.
Our review is guided by the following well-settled law.
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.
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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.A. §§ 2101-2938, which 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). The
burden is upon the petitioner to 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).
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Instantly, we conclude that the trial court properly terminated Mother’s
parental rights pursuant to Section 2511(a)(2) and (b), which provide as
follows.5
§ 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:
…
(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
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5
This Court need only agree with any one subsection of 23 Pa.C.S.A.
§ 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). Therefore, in light of our disposition as to Section 2511(a)(2), we
need not consider Mother’s arguments with respect to Section 2511(a)(1),
(5), and (8). Nevertheless, upon careful review of the trial court’s Rule
1925(a) opinion, we agree with the trial court that termination pursuant to
Section 2511(a)(5) and (8) was also proper. See Trial Court Opinion,
3/3/15, at 3-5.
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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).
To satisfy the requirements of 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; (2) such incapacity, abuse,
neglect or refusal 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) (citation
omitted). “The grounds for termination [of parental rights under Section
2511(a)(2),] 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).
With respect to Section 2511(b), the requisite analysis is as follows.
Subsection 2511(b) focuses on whether termination
of parental rights would best serve the
developmental, physical, and emotional needs and
welfare of the child. In In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and
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stability are involved in the inquiry into the needs
and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and
status of the parent-child bond, with utmost
attention to the effect on the child of permanently
severing that bond. Id. However, in cases where
there is no evidence of a bond between a 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). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of
the particular case. Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
On appeal, Mother argues that her conduct does not warrant
termination under Section 2511(a)(2) because she has completed all of her
Family Service Plan (FSP) goals. Mother’s Brief at 17. Specifically, she
asserts that she complied with the goals of attending the Achieving
Reunification Center, family school, individual therapy, and parenting
classes. Id. In addition, Mother asserts that she can provide a safe home
for the Children, and that she is caring for her other children competently.
Id. Finally, Mother asserts that the Children “are now healthier than they
were several years ago”, and that she has the present capacity to care for
them. Id. For the reasons that follow, we discern no abuse of discretion by
the trial court.
At the conclusion of the termination hearing, the trial court stated the
following in open court.
Mom has been and is compliant with her FSP
objectives. However, that is not the issue. The
issue as counsel has ably stated which I wrote down
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[ ] with respect to mom is, can the mom parent
these two medically needy children? The testimony
regarding that from Dr. Russell as well as the social
workers was, no. She can’t effectively parent these
children due to capacity issues. Mother even
testified today regarding the medication and after
three years in care, unfortunately not that she
doesn’t care but unfortunately she got it wrong.
That’s very telling in this case. I have to do what’s
in the best interest of the child[ren] to ensure their
safety.
N.T., 11/25/14, at 42.
Dr. William Russell, an expert in Forensic Evaluations, testified that he
performed a parenting capacity evaluation with respect to Mother in April
2014. N.T., 10/8/14, at 7. Dr. Russell concluded that Mother “was not
prepared or capable of caring for the safety and permanency of these
[C]hildren at the time of the evaluation.” Id. at 11. Dr. Russell explained
that Mother has an IQ in the borderline range, and that “[Mother] has a
good deal of difficulty abstracting, taking apart things, taking apart
alternatives. She has great difficulty anticipating actions or anticipating
activities, which is a critical component of parenting. Especially, with any
type of child with any problems…” Id. at 13. Dr. Russell testified that, in
his opinion, Mother “was not able to provide the safety for permanency, and
unless there was some dramatic change or something happened
dramatically, I don’t think that was going to change in the near future.” Id.
at 17.
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Similarly, Janet Thurston, the DHS caseworker, testified on cross-
examination by the Child Advocate, as follows.
Q. In your opinion, do you believe that the mother
really understood the challenges that these twin
children face because of their medical issues?
A. No.
Q. Do you believe that mother will, ever, even one
day, acquire the ability to properly parent severely ill
children?
A. No.
Q. You don’t believe that?
A. No.
Id. at 27.
Likewise, Becky Rossi, the Bethanna Foster Care Agency caseworker,
testified that she does not believe Mother has the ability to administer the
medication required for the Children. Id. at 30. She explained that she has
attended the Children’s medical appointments with Mother, and that Mother
“never ask[s] any questions, and, yet, afterwards she doesn’t understand
their needs and she doesn’t understand what’s required.” Id. at 30-31.
Further, she explained that Mother “is very passive during doctor
appointments and doesn’t ask any questions. [ ] [T]he doctors will direct it
to her and say, ‘Do you need any more information?’ And she never has any
questions.” Id. at 31.
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Finally, Mother testified on direct examination with respect to the
Children’s medical needs, as follows.
Q. Tell me what medical needs, your understanding
of what their current medical needs are?
A. (No response.)
Q. Are they on oxygen?
A. No. (Inaudible) well, they have been off the
oxygen. They recently – when I told her their [sic]
doctor said they no longer need the pump no more,
(inaudible) they was going to give them – only
reason – because they didn’t have allergies.
…
Q. What is your understanding of what – like from
the minute the girls wake up what kind of medical
treatment you might need to give them on a regular
basis – on a daily basis, like, if they were with you
today what would you have to do with them?
A. I would (inaudible) I guess their medicine
(inaudible) asthma pump, they have a breathing
machine.
Q. Okay, so do you know how often they get the
asthma pump?
A. Yes.
Q. How often?
A. The albuterol is every four hours, the Flovent (sic)
is as needed.
Q. Are the girls on any kind of monitors?
A. No.
N.T., 11/25/14, at 29-30.
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However, Rossi testified on rebuttal by counsel for DHS to the
following.
Q. Miss Rossi, mother just testified on direct
examination having been asked by her attorney
about the children’s medical care, the children get
Albuterol every four hours and Flovent as needed; is
that correct?
A. No.
Q. What’s the correct medication schedule for the
children?
A. They get Flovent twice daily and Albuterol as
needed but only every four hours.
Q. Mom also mentioned an asthma pump, is this
[sic] such a thing as an asthma pump?
A. I’m not sure what she’s referring to –
Q. – okay. Are the children under the care of any
other medicines or instruments?
A. They have another allergy medicine that they take
daily, I don’t know the name of it but that’s a daily
medicine.
Q. Are there any machines that they use at any
time?
A. Sometimes in the winter if they get a bad cough
they use a nebulizer.
Id. at 32.
Based on the foregoing testimonial evidence, we discern no abuse of
discretion by the trial court in concluding that Mother’s repeated and
continued incapacity has caused the Children to be without essential
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parental care, control or subsistence necessary for their physical well-being,
and that the causes of Mother’s incapacity cannot or will not be remedied.
Thus, Mother’s issue fails with respect to Section 2511(a)(2).
With respect to Section 2511(b), Mother argues that the Children
“have lived with [her] for the first months of their lives and have a strong
bond with [her] and [their] siblings.” Mother’s Brief at 20. Further, Mother
argues that her “continued visitation with her children has kept this bond
strong[;] therefore, termination of mother’s rights does [not] serve [their]
physical and emotional needs and welfare.” Id. We disagree.
This Court has explained the trial court’s role in assessing the needs
and welfare of the child, as follows.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015), quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Herein, the trial court found that the Children “have established a bond
with their foster parents of three years…. The foster parents provide a safe
and appropriate home and meet the needs, including all medical needs, of
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the [C]hildren….” Trial Court Opinion, 3/3/15, at 5 (citations to record
omitted).
Thurston testified that the Children have been in the same medical
foster home for 34 months at the time of the termination hearing, and that
the foster parents are meeting the Children’s needs. N.T., 10/8/14, at 24.
She testified that the Children “are extremely bonded with these foster
parents. They address them as mom and dad.” Id. at 25. Thurston
testified that Mother has consistently attended weekly visits with the
Children during their dependency, but that the Children have a primary
parental bond with “[t]he current medical foster parents.” Id. Likewise,
Rossi testified, in part, that the Children “look to the foster parents as their
parents. They call them mommy and daddy.” Id. at 29.
The foregoing testimonial evidence demonstrates that the Children
have a parental bond with their pre-adoptive foster parents and not with
Mother. Moreover, the totality of the record evidence overwhelmingly
demonstrates that involuntarily terminating Mother’s parental rights would
best serve the developmental, physical, and emotional needs and welfare of
the Children. See In re J.M., supra. Thus, Mother’s issue fails with
respect to Section 2511(b).
Based on the foregoing, we conclude the trial court did not abuse its
discretion in terminating Mother’s parental rights pursuant to 23 Pa.C.S.A.
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§ 2511(a)(2) and (b). See In re T.S.M., supra. Accordingly, we affirm the
trial court’s November 25, 2014 decrees.
Decrees affirmed.
Judge Panella joins the memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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