Adoption of: A.C. Appeal of: A.N. ( 2014 )

J-S52045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: A.N., MOTHER : No. 1336 EDA 2014
Appeal from the Decree Entered April 8, 2014
In the Court of Common Pleas of Montgomery County
-A-0199
BEFORE: GANTMAN, P.J., ALLEN, J., AND FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 20, 2014
Montgomery County Court of Common Pleas, which granted the petition of
The relevant facts and procedural history of this appeal are as follows.
In February 2012, OCY learned that Mother was incarcerated and four-year-
old Child was living with a relative. After her release from jail on April 2,
2012, Mother resumed caring for Child. At that point, Mother did not
cooperate with OCY. Specifically, Mother did not notify OCY regarding where
the family was living. Mother did not answer her telephone or return calls
from the OCY caseworker. Mother also tested positive for drugs.
The court adjudicated Child dependent on May 1, 2012. On June 13,
_____________________________
*Former Justice specially assigned to the Superior Court.
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2012, OCY placed Child in foster care, where she has remained ever since.
custody of Child. The FSP objectives included cooperation with OCY,
maintaining sobriety, and avoiding additional incarceration. OCY provided
Mother with services to assist her in completing the FSP goals.
Nevertheless, Mother did not successfully complete the FSP goals. Mother
was re-incarcerated from June 21, 2012, to November 17, 2012. After her
release from jail, Mother failed multiple drug tests in 2012 and 2013.
Mother also failed to maintain contact with the OCY caseworker.
On October 3, 2013, OCY filed a petition for involuntary termination of
March 26, 2014, April 3, 2014, April 4, 2014, and April 8, 2014.
Immediately following the April 8, 2014 hearing, the court entered a final
Mother timely filed a notice of appeal, which included a concise statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i).
Mother raises five issues for our review:
WHETHER THE COURT ABUSED ITS DISCRETION IN
THERE IS A PARENTAL INCAPACITY OR REFUSAL TO
PERFORM HER PARENTAL DUTIES, AND THAT ANY SUCH
INCAPACITY OF MOTHER CANNOT OR WILL NOT BE
REMEDIED BY MOTHER BECAUSE MOTHER HAS
SUBSTANTIALLY COMPLIED WITH THE GOALS OF THE
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[FSP] THAT REQUIRED HER TO OBTAIN TREATMENT TO
ADDRESS HER SUBSTANCE ABUSE AND MENTAL HEALTH
PROBLEMS, MAINTAIN STABLE HOUSING, INCOME, AND
CONSISTENTLY VISIT WITH [CHILD] WHILE SHE WAS IN
PLACEMENT?
WHETHER THE COURT ABUSED ITS DISCRETION IN
FINDING THAT THE DEVELOPMENTAL, PHYSICAL AND
EMOTIONAL NEEDS AND WELFARE OF [CHILD] WILL BE
BEST SERVED BY THE TERMINATION OF BIRTH
BIOLOGICAL RIGHTS PURSUANT TO 23 PA.C.S. § 2511(b)
AS THERE IS A STRONG BOND DOCUMENTED BETWEEN
MOTHER AND DAUGHTER, AND THAT SEVERANCE OF
SUCH A BOND SHALL CAUSE IRREPARABLE HARM TO
MINOR CHILD?
WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT
THE FINDINGS OF THE COURT THAT THE AGENCY PROVED
BY CLEAR AND CONVINCING EVIDENCE THE
WHETHER THE COURT ERRED IN GRANTING THE
REUNIFICATION TO ADOPTION AS THE GOAL OF
REUNIFICATION REMAINS THE MOST APPROPRIATE AND
FEASIBLE GOAL BASED UPON A REVIEW OF THE
STATUTORY FACTORS SET FORTH IN 42 PA.C.S. §
6351(f)?
WHETHER THE COURT HAD SUFFICIENT EVIDENCE TO
DETERMINE THE APPROPRIATENESS OF CHANGING THE
GOAL FROM REUNIFICATION TO ADOPTION IN THAT THE
COURT IS REQUIRED TO CONSULT WITH THE CHILD
REGARDING THE PERMANENCY PLAN IN A MANNER
REQUIRED PURSUANT TO 42 PA.C.S. § 6351(e)(1)?
at 4).
On appeal, Mother contends she made progress toward alleviating the
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Mother asserts she visited Child, maintained appropriate housing, obtained a
source of income, completed drug and psychiatric evaluations, attended
parenting and anger management classes, and participated in daily
methadone treatments. Mother acknowledges her failed drugs tests, but she
ix (6)
Brief at 15). Mother argues her recovery from drug addiction will continue
for the rest of her life, and the fact that she obtained treatment
Mother also insists she has a bond with Child. Mother complains
environmental factors alone should not form the basis for termination, where
needs. Mother concludes the court erroneously terminated her parental
rights.1 We disagree.
Appellate review in termination of parental rights cases implicates the
following principles:
standard of review is limited to determining whether the
order of the trial court is supported by competent
1
To the extent Mother also challenges the goal change from reunification to
adoption, we observe that the April 8, 2014 decree on appeal terminated
tal rights. It did not simultaneously change the goal to
adoption. Further, the certified record contains nothing related to goal
arguments regarding the propriety of the goal change.
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evidence, and whether the trial court gave adequate
consideration to the effect of such a decree on the welfare
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
employ a broad, comprehensive review of the record
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).
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
are supported by competent evidence, we must affirm the
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
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1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d
1165 (2008)).
the following grounds:
§ 2511. Grounds for involuntary termination
(a) General Rule.
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.
* * *
(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.
* * *
(b) Other considerations.
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
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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), (8); (b).2
terminated where any one subsection of Section 2511(a) is satisfied, along
In re Z.P., supra
at 1117.
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 perfo In
re S.C.B.
make diligent efforts towards the reasonably prompt assumption of full
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)). The
fundamental test in termination of parental rights under Section 2511(a)(2),
was stated in In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the
Pennsylvania Supreme Court announced that under what is now Section
repeated and continued incapacity, abuse, neglect or refusal; (2) that such
2
under Section 2511(a)(1), but the court found that OCY had failed to prove
that termination was warranted under that section.
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incapacity, abuse, neglect or refusal caused the child to be without essential
parental care, control or subsistence; and (3) that the causes of the
In
Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).
),
the following factors must be demonstrated: (1) The child has been removed
from parental care for 12 months or more from the date of removal; (2) the
conditions which led to the removal or placement of the child continue to
exist; and (3) termination of parental rights would best serve the needs and
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76
(Pa.Super. 2003).
Under Section 2511(b), the court must consider whether termination
In re C.P., 901 A.2d 516
Id.
exists between child and parent, and whether termination would destroy an
In re Z.P., supra at 1121.
In re Diaz, 669 A.2d 372, 377 (Pa.Super. 1995).
When parents act in accordance with the natural bonds of
parental affection, preservation of the parent-child bond is
prima facie in the best interest of the child, and the state
has no justification to terminate that bond. On the other
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hand, a court may properly terminate parental bonds
which exist in form but not in substance when
preservation of the parental bond would consign a child to
an indefinite, unhappy, and unstable future devoid of the
irreducible minimum parental care to which that child is
entitled.
Id. (quoting In re J.W., supra at 958) (emphasis in original).
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
In re
B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
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
Parental 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
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ifficult 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
and emotional needs.
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 and quotation marks omitted).
Id. at 856.
Instantly, the court adjudicated Child dependent on May 1, 2012. On
October 3, 2013, OCY filed the petition for involuntary termination of
Moth
termination petition. On March 26, 2014, Mother presented testimony from
Dr. Diana Rosenstein, the court-appointed psychologist who conducted the
bonding evaluation in February 2014. During the evaluation, Dr. Rosenstein
observed that Mother and Child were excited to see each other. Mother
brought age-
was warm and affectionate. Based upon her observations, Dr. Rosenstein
confirmed that Child did have a bond with Mother. When asked about how
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Rosenstein explained that Child would have mixed feelings:
I think she clearly values her relationships with both of the
parents.[3] I saw signs of ambivalent feelings of both
parents. There were flares of anger in each
know how much she understands about the reasons for it.
I think she has a very general understanding that
exactly what happened to cause her to be in foster care.
* * *
with [Foster Mother] is something that she values greatly.
that.
(See N.T. Termination Hearing, 3/26/14, at 28.)
On cross-examination, Dr. Rosenstein testified that Mother simply
ignored Child on the occasions where Child acted out or seemed frustrated.
Dr. Rosenstein also characterized Mother as a reluctant participant in the
Id. at 61). Dr. Rosenstein explained
Id. at
regarding the possibility of an untreated mental illness. Ultimately, Dr.
Rosenstein opined that Child should remain with Foster Mother:
3
Father voluntarily relinquished his parental rights to Child on April 3, 2014.
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I
living arrangements. [Child] needs some clarity about
st of her childhood.
(Id. at 78).
At the hearing conducted on April 3, 2014, OCY presented testimony
worked with Mother since January 2013. Ms. Hall testified that Mother
currently receives a daily dose of methadone, participates in routine
medication checks, and attends individual counseling sessions every other
week. Although Mother showed signs of stabilization, she tested positive for
drugs other than methadone on five occasions between January 2013 and
October 2013. Ms. Hall also indicated that Mother failed to go to the clinic
for her daily methadone on twenty-five occasions during the same period.
At the same hearing, OCY presented testimony from Leslie Hallinan,
wh
testified that OCY commenced in-home services for Mother in May 2012.
OCY attempted to assist Mother in achieving her FSP goals and obtaining
reunification with Child. While Ms. Hallinan acknowledged that Mother was
receiving drug treatment at the methadone clinic, Ms. Hallinan noted Mother
had tested positive for drugs other than methadone on six occasions
between April 2012 and January 2014. Mother also failed to respond to
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multiple requests for additional drug screenings during the same period.
After a positive drug test in January 2014, Ms. Hallinan attempted to
contact Mother. Ms. Hallinan could not reach Mother by telephone, and
seemed to
the influence of a controlled substance. (See N.T. Termination Hearing,
4/3/14, at 93.) Ms. Hallinan stressed that these incidents underscored
I reach out to [Mother] constantly over the phone, and I
try to make as many home visits as possible. The majority
meetings, numerous contacts, again, [where] I have
addressed her about the cooperation and that she needs to
answer my phone calls or she needs to at least return my
phone calls, that we need to be in communication.
(Id. at 95).
remain with Foster Mother:
[Child] flourishes in her foster home. She does
being loved. Foster mom creates an environment of
structure with boundaries, with organization and a sense of
normalcy. That she knows exactly what to expect pretty
much every day at all times.
* * *
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I do not feel that [Mother] understands the seriousness
currently. Mom discredits the issues of her drug and
alcohol and her mental health.
(Id. at 112-13). Ms. Hallinan concluded Child would not suffer permanent
Id. at 115).
Based upon the foregoing, the court concluded that the termination of
[Mother] appears to be pursuing recovery through her
treatment at the methadone clinic, and that is to her
credit. She has currently a stable home and has
addressed many of the conditions, including completing a
parenting class and anger management class.
Nevertheless, the lack of cooperation with [OCY], the
inconsistent responsiveness to request[s] for random drug
screens, concerns about [the] consistency and stability of
communicate with [OCY] in her own best interest, all
continue to be serious problems that have prevented
timely reunification with her daughter.
The Superior Court talking about the application of Section
may seem harsh when the parent has begun to make
progress toward resolving the problems that have led to
when conditions that led to her removal continue to exist
after a year, the statute implicitly recognizes that the
unable to perform the actions necessary while assuming
parenting responsibilities. The [c]ourt cannot and will not
future. Indeed, we work under statutory case law that
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process of either reunification or adoption for a child that
has been placed in foster care.
Section 2511(a)(2). There is evidence in the record that
supports a finding of incapacity to parent which includes
the f
cooperation, canceling of meetings with the psychologist
on short notice, canceling of meetings and missing of
meetings with [OCY] and failure to return phone calls, and
be present for scheduled meetings with the caseworker, is
related to her anxiety disorder, as birth mother maintains[,
this] is nevertheless evidence that the [c]ourt must
consider in terms of whether [Mother] has the capacity to
do everything that is necessary to adequately parent and
supervise her child.
It is also relevant that despite the lengthy history of
psychiatric issues and substance abuse, birth mother
minimizes her need for psychiatric and psychological care
and does not adequately address her mental health issues.
Also relevant is that despite being in the midst of a
contested court hearing regarding her parental rights, she
has no long-term plans for her child. She was unable to
name the school that her child would attend if she should
come to live with her.
* * *
and activities. Birth mother also did not demonstrate an
ability to form a trusting, open communication with the
caseworker or with the foster m
father, other adults important to the child and her welfare.
* * *
Based upon the evidence in the record, much of which I
evidence in the exhibits as well, the [c]ourt finds grounds
to terminate parental rights under Section 2511(a)(8) and
2511(a)(2) on the basis of incapacity.
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* * *
In this case, I find that there is a parental bond between
the birth mother and this child. However, I find that the
bond that has developed between the foster mother and
the child is stronger, and it would be in the best interest of
[Child] that she be able to find a permanent home through
adoption with her foster mother and maintain the safety
and security that she has found there.
(See N.T. Termination Hearing, 4/8/14, at 45-48, 49, 52). The record
minimum parental care for Child. See In re Z.P., supra; In re B.L.L.,
supra
rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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