In the Int. of: A.S.S., Appeal of: T.S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.S.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.S., MOTHER :
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: No. 1570 EDA 2021
Appeal from the Order Entered July 14, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000225-2021
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 5, 2022
T.S., the natural mother of one-year-old A.S.S. (“Child”), appeals from
the order terminating her parental rights to Child. Mother argues she was not
provided notice of the termination hearing and that the trial court erred in
terminating her parental rights. We affirm.
Child was born with cocaine in her system. As a result, Child was
immediately removed from Mother’s custody and placed with her maternal
grandmother. Mother’s parental rights to her previous children had already
been terminated due to her drug abuse issues.
The Philadelphia Department of Human Services (“DHS”) provided
Mother with a plan to allow her to resume custody of Child. Among the
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* Former Justice specially assigned to the Superior Court.
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components of the plan were requirements that Mother participate in mental
health and drug abuse treatment programs, attend parenting classes, obtain
stable housing, and visit Child regularly. One year after Child’s birth, Mother
had not complied with any of the plan’s requirements. DHS then filed a petition
to terminate Mother’s parental rights involuntarily.
DHS sent Mother copies of the petition through USPS certified mail and
UPS overnight delivery on May 7, 2021. DHS records indicated that neither
copy was returned to DHS, and that as of June 1, 2021, the USPS certified
mail was still listed as “in transit.”
A hearing was held on the petition on July 14, 2021. Mother’s appointed
counsel was present, but Mother was not. Mother’s counsel objected to the
hearing, contending that DHS had not established it had made a good faith
effort at serving Mother with notice of the hearing. The trial court overruled
counsel’s objection, and the hearing proceeded. After taking testimony from
DHS witnesses, the court terminated Mother’s parental rights to Child, and
this timely appeal followed.
Mother first claims the trial court erred in overruling counsel’s objection
that DHS had failed to establish a good faith effort to serve Mother with notice
of the hearing. DHS bore the burden of proving that it had properly served
Mother. See In re K.B., 763 A.2d 436, 439 (Pa. Super. 2000). The
Pennsylvania Adoption Act requires such notice be provided at least ten days
before the hearing. See 23 Pa.C.S.A. § 2513(b). DHS was permitted to
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provide service “by registered mail to [Mother’s] last known address.” Id. It
is undisputed that DHS attempted service at Mother’s last known address.
However, it is similarly undisputed that DHS did not attempt service by
registered mail. See N.T., 7/14/21, at 7.
Instead, DHS attempted service through certified mail, supplemented
by UPS overnight delivery. See id., at 7-8. Certified mail and registered mail
are two different services provided by the USPS. See In re Maynard, 473
A.2d 1084, 1085 n.2 (Pa.Super. 1984); compare
https://faq.usps.com/s/article/Registered-Mail-The-Basics, last accessed
12/21/2021, with https://faq.usps.com/s/article/What-is-Certified-Mail, last
accessed 12/21/2021. Mother’s counsel highlighted this distinction while
objecting to the hearing, but acknowledges in his brief on appeal that Orphans’
Court Rule 15.6(a) allowed DHS to utilize certified mail. See Appellant’s Brief,
at 6.
On appeal, Mother contends that DHS did not establish that the certified
mail was actually delivered to Mother. As such, Mother asserts, DHS failed to
establish it made a good faith effort at serving Mother with notice of the
hearing. Certainly, DHS’s evidence on this point was far from conclusive. No
testimony was provided on this issue, just statements made by counsel on the
record. However, Mother does not object to the lack of sworn testimony on
the issue.
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Nor does Mother specifically object to other irregularities in the record.
For example, counsel for DHS indicated that she had a copy of the certified
mail that was sent to Mother. See N.T., 7/14/21, at 11. This copy presumably
included the mailing receipt provided by USPS for certified mail. She further
asserted that “the USPS website indicates that as of June 1, 2021[,] it was
still in transit.” Id. However, counsel for DHS did not move these documents
into evidence, and they are not in the certified record on appeal.
In contrast, the UPS overnight proof of service is in the certified record,
but there is no dispute that service by UPS does not satisfy DHS’s burden for
actual service. See In re Adoption of K.M.D., 261 A.3d 1055, 1063 (Pa.
Super. 2021) (requiring strict compliance with the mandates of section
2513(b) and Pa.O.C.R. 15.6). Nevertheless, Mother does not specifically
challenge DHS’s assertion that it attempted service by certified mail, the
absence of the mailing receipt or tracking number report, or the fact that, as
of the date of the hearing, July 14, 2021, DHS only asserted that as of June
1, 2021, the certified mail was not marked as delivered in the tracking number
report.
Under these circumstances, we are left with nothing to review but
counsel for DHS’s assertions. The trial court credited these assertions. We are
in no position to second-guess the trial court’s credibility determination on this
issue. We therefore accept the trial court’s finding that DHS attempted service
through certified mail.
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While the court did not expressly find that DHS’s attempted service
through certified mail failed, the court explicitly found that DHS had made
good faith efforts at effectuating service. Under the unique circumstances of
this case, we cannot conclude the trial court abused its discretion in finding
DHS made a good faith effort. Mother made no effort to maintain contact with
DHS throughout the dependency proceedings, and DHS made efforts to locate
her. It attempted to provide service through certified mail and by UPS
overnight service. While the evidence in the certified record of DHS’s good
faith efforts is scant, it is sufficient to support the trial court’s conclusion.
Accordingly, we conclude Mother’s first issue on appeal merits no relief.
Next, Mother contends the trial court erred in finding that DHS had
presented sufficient evidence to establish statutory grounds for termination of
her parental rights. We apply a deferential standard of review in appeals from
orders terminating parental rights:
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).
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Section 2511 of the Adoption Act governs the involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It 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).
DHS bore the burden of proving, by clear and convincing evidence, that
the asserted grounds for seeking the termination of parental rights are valid.
See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). Moreover, “[t]he
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.”
Id. (citation and internal quotation marks omitted).
Here, the court terminated Mother’s parental rights pursuant to Section
2511(a)(1), (2), (5), (8), and (b). We need only agree with the court as to
any one subsection of Section 2511(a), as well as Section 2511(b), to affirm.
See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We
conclude the court’s decision is justified pursuant to Section 2511(a)(8) and
(b).
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Under Section 2511(a)(8), DHS was required to produce clear and
convincing evidence that: “(1) [t]he 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 welfare of the
child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa. Super.
2003). In addition, we have explained the following:
Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the [child]’s removal by the
court. Once the 12-month period has been established, the court
must next determine whether the conditions that led to the child’s
removal continue to exist, despite the reasonable good faith
efforts of the Agency supplied over a realistic time period.
Termination under Section 2511(a)(8) does not require the court
to evaluate a parent’s current willingness or ability to remedy the
conditions that initially caused placement or the availability or
efficacy of Agency services.
In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010) (citations and quotation
marks omitted).
A parent is required “to make diligent efforts toward the reasonably
prompt assumption of full parental responsibilities.” In re A.L.D., 797 A.2d
326, 340 (Pa. Super. 2002) (citation and quotation marks omitted). A parent’s
vow to cooperate, after a long period of uncooperativeness regarding the
necessity or availability of services, may properly be rejected as untimely or
disingenuous. See id.Here, Mother’s argument on appeal focuses on whether DHS established
that termination of her parental rights would best serve Child’s needs and
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welfare. She highlights the lack of communication between DHS’s agents and
herself as evidence that DHS has not considered Child’s bond with Mother.
See Appellant’s Brief, at 9. And she reiterates her complaints about the
manner she was served notice of the hearing. See id. We see no merit to
these arguments.
Mother was given a plan for regaining custody of Child immediately after
Child was born with cocaine in her system. See N.T., 7/14/21, at 12-13. The
plan required Mother to seek treatment for her mental health and drug abuse
issues, as well as to attend parenting classes and supervised visits with Child.
See id., at 14. Mother was also required to obtain stable housing. See id.
Nearly 16 months after Child was born, Mother had not made any
progress on any of the goals in the plan. See id., at 14-15. Most alarmingly,
Mother had not attended any of the supervised visits with Child that DHS
offered or had any other contact with Child. See id., at 15-17. Based on this
evidence, we do not hesitate to conclude that DHS presented sufficient
evidence to justify termination of Mother’s rights under Section 2511(a)(8).
In her final argument on appeal, Mother contends the trial court erred
in determining that termination was justified under Section 2511(b) of the
Adoption Act. Pursuant to Section 2511(b), the trial court was required to
examine whether termination of parental rights would best serve the
developmental, physical, and emotional needs and welfare of Child. See In
re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005). “Intangibles such
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as love, comfort, security, and stability are involved in the inquiry into the
needs and welfare of the child.” Id., at 1287 (citation omitted).
Our Supreme Court has stated the following:
[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. . . . In In
re E.M., 620 A.2d [481,] 485 [(Pa. 1993)], 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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations and quotation
marks omitted).
In a termination of parental rights case, the trial court is required to
consider “whatever bonds may exist between the children and [the natural
parent], as well as the emotional effect that termination will have upon the
children.” In re Adoption of A.C.H., 803 A.2d 224, 229 (Pa. Super. 2002)
(citation omitted). The extent of any bond analysis necessarily depends on the
circumstances of the particular case. See In re K.Z.S., 946 A.2d 753, 763
(Pa. Super. 2008). The panel in In re K.Z.S. emphasized that, in addition to
a bond examination, the court can equally emphasize the safety needs of the
child and should consider the intangibles, such as the “love, comfort, security,
and stability,” the child might have with the foster parent. Id. at 760 (citation
omitted).
Here, we reiterate DHS presented evidence that Mother, by her own
volition, has refused any contact with Child since Child was removed from
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Mother’s custody shortly after birth. There is simply no reason to believe that
Child has any emotional bond with Mother. Further, DHS presented testimony
that Child has no bond with Mother. See N.T. 7/14/21., at 19. Child calls her
maternal grandmother, who has custody of Child, “mom.” See id., at 18.
Under these circumstances, we can find no abuse of the trial court’s discretion
or error of law based on the court’s finding that termination of Mother’s
parental rights will best serve the developmental, physical, and emotional
needs and welfare of Child. Mother’s final issue on appeal merits no relief.
As none of Mother’s issues on appeal merit relief, we affirm the order
terminating her parental rights to Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/05/2022
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