Interest of A.G.S. & M.R.S. Appeal of:M.M., mother ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF A.G.S. & : IN THE SUPERIOR COURT OF
M.R.S., MINORS : PENNSYLVANIA
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APPEAL OF: M.M., MOTHER :
:
:
:
: No. 1881 WDA 2016
Appeal from the Order Entered November 7, 2016
In the Court of Common Pleas of McKean County
Orphans’ Court at No(s): 42-15-0107 & 42-15-0107-1
BEFORE: OLSON, MOULTON, and STRASSBURGER*, JJ.
MEMORANDUM BY MOULTON, J.: FILED JUNE 06, 2017
M.M. (“Mother”) appeals from the November 7, 2016 orders entered in
the McKean County Court of Common Pleas granting the petitions filed by
the McKean County Children and Youth Services (“CYS”), and involuntarily
terminating her parental rights to her children, A.G.S., born in June 2013,
and M.R.S., born in September 2014, (“Children”), pursuant to the Adoption
Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b). We affirm.1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
In separate orders entered on that same date, the trial court
terminated the parental rights of S.S. (“Father”). Father has filed a separate
appeal from the termination of his parental rights at Docket No. 1880 WDA
2016, which we address in a separate Memorandum, as did the trial court.
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Both Mother and Father (“Parents”) have a lengthy history of drug
abuse and incarceration.2 The trial court found the following facts:
[M.R.S.] was in the care of her Parents until September
of 2014. [A.G.S.] was born addicted to Methadone. CYS
was notified by medical providers regarding [A.G.S.’s]
condition[,] and CYS initiated an investigation shortly after
her birth and before she was released by the hospital. CYS
filed Petitions for Dependency on September 29, 2014.
Several hearings were held to address the Dependency
Petitions and to review the status of the dependency cases
following disposition.
Tr. Ct. Memorandum and Order, 11/7/16, at 1 (unpaginated) (“Termination
Op.”).3
The trial court adjudicated Children dependent on October 6, 2014,
and placed Children in the care of B.L. (“Foster Mother”) and M.L. (“Foster
Father”) (“Ls” or “Foster Parents”). Children remain with Foster Parents, id.
at 10, and are doing well in their care, id. at 3.
____________________________________________
2
Prior to A.G.S. being removed from Parents’ care and custody,
Father, Mother, and A.G.S. resided with M.S. (“Paternal Grandmother”). Tr.
Ct. Memo. and Order, 11/7/16, at 8 (unpaginated). Paternal Grandmother
provided the majority of the care for A.G.S. Paternal Grandmother has
health issues and is unable to provide care for either of the Children. Id.
For a complete discussion of the factual and procedural history of this case,
please see the trial court’s memorandum and order filed on November 7,
2016.
3
The trial court entered a separate memorandum and order for each
child, with two orders attached to each memorandum, one regarding each
parent. The memoranda are identical with regard to the portions that we
cite and quote herein.
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On April 28, 2015, CYS filed petitions seeking to involuntarily
terminate the parental rights of Mother and Father to Children, and filed
amended petitions on November 19, 2015. The trial court held evidentiary
hearings on the petitions on July 31, 2015; December 2, 11, 14, and 18,
2015; January 25 and 26, 2016; and July 15, 2016.4
Importantly, the trial court found the following from the testimony of
Foster Parents:
The court finds the testimony of [Foster Mother]
credible. [The Ls] live in McKean County. They have been
married for over 29 years. They have served as foster
parents since October 2001. [A.G.S.] was placed with
them in October of 2014. [M.R.S.] was placed with them
shortly after her birth and when she was discharged from
the hospital. The [Ls] have provided exceptional care for
[Children]. [Foster Father] obtained training to recognize
and address issues that [A.G.S.] may have due to being
born drug addicted. The [Ls] have taken both children to
their medical appointments. The [Ls] offered to allow the
parents to call their home to obtain information regarding
[C]hildren. Mother has called at times. However, “it
depends on where she is.” Mother has gone several weeks
and even months without calling the [Ls]. Mother has sent
“about 5 letters and cards” to the [Ls] for [C]hildren.
Mother has also sent gifts for [C]hildren to the [Ls].
Mother attended a birthday party for [M.R.S.] that the [Ls]
had on June 26, 2015. Mother also attended a visit at the
[Ls] on August 16, 2015; and, according to the [Ls],
Mother’s attendance at the birthday party and the August
2015 visit was “completely appropriate.” Father has only
called the [Ls] once.
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4
In its memorandum and orders, the trial court summarized the
testimony from these hearing dates, and identified the testimony that it
found credible and that which it did not. See Termination Op. at 1-16.
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[Children] are very bonded with the [Ls] and their
children. The girls recognize the [Ls] as their primary
caretakers and are very affectionate toward them. The
[Ls] “adore those girls” and would adopt them if that is an
option.
...
The court finds the testimony of [Foster Father]
credible. [Foster Father] reaffirmed the testimony
provided by [Foster Mother]. He explained that [M.R.S.]
was discharged to his care [from] the hospital after he
attended a program on how to provide for a child that was
born drug dependent. He explained that he and/or his
wife take the girls to their medical and other necessary
appointments. He indicated that parents have not
attended any of the medical appointments that he has
taken the girls to[]. He explained that he “loves these
kids” and he and his wife would adopt them if that is an
option.
Termination Op. at 10.
The trial court found the following credible from the testimony of the
CYS caseworker, Denise Butler:
[Butler] was assigned as the caseworker for [Children]
in November of 2014. When she was first assigned to
these cases Mother was still incarcerated and Father was
still residing with his Mother, [Paternal Grandmother], in
Port Allegheny, PA. Following her release from
incarceration Mother was a resident at the Gaudenzia Drug
and Alcohol Treatment Program in Erie, PA. Caseworker
Butler scheduled bi-weekly visits with Mother and the
children at Gaudenzia. After Mother was unsuccessfully
discharged from Gaudenzia the court temporarily
suspended visits with Mother. Mother advised caseworker
Butler that she was discharged from Gaudenzia “the first
time as she got into a fight” with another participant in the
program. Mother did not notify caseworker Butler that she
had been discharged f[ro]m Gaudenzia. Caseworker Butler
later discovered that Mother had left Gaudenzia and had
moved in with her parents in Emporium, PA. Father
advised Caseworker Butler in January of 2015 that Mother
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had been discharged and that she was back in Emporium.
Mother contacted caseworker Butler in the summer of
2015 and requested visits and that the Parents as
Teachers program be involved with the family again.
Mother asked that visits be held in Emporium and the
Agency denied this request. There have been two Parents
as Teachers sessions in November and December of 2015
(one a month). Mother has attended one medical
appointment for [C]hildren (October of 2015).
...
Regarding the bond between Parents and [C]hildren
Caseworker Butler testified that it was similar to the
relationship “with a babysitter.” She explained “they
([C]hildren) are familiar with them, they are not scared of
them, I mean not interact with them, but like taking
[M.R.S.] from the [Ls,] she cries every time I want - I
come to pick her up and she reaches for them (Ls/Foster
[P]arents) because she doesn’t want to go out the door.
She doesn’t want to go with [Father and Mother].”
Id. at 13.
As noted above, on November 7, 2016, the trial court entered the
memorandum and orders granting the petitions for involuntary termination
of the parental rights of Mother to Children pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), and (b).5
On December 7, 2016, Mother timely appealed from the termination
orders. In her brief on appeal, Mother raises one issue:
Whether the trial court abused its discretion in finding that
the evidence admitted at trial was sufficient to support an
involuntary termination of parental rights?
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5
The orders were dated as filed on November 7, 2016. Notice was not
sent to the parties until November 10, 2016.
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Mother’s Br. at 3.
In reviewing an order terminating parental rights, we adhere to 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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error
of law or abused its discretion. As has been often stated,
an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
As we discussed in [In re R.J.T., 9 A.3d 1179, 1190
(Pa. 2010)], 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
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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations
omitted).
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The termination of parental rights is governed by section 2511 of the
Adoption Act, 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
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 R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009). We have
explained:
[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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)).
In this case, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (5), as well as (b).6 Mother
____________________________________________
6
Although the trial court’s orders do not expressly state that Mother’s
parental rights are terminated under section 2511(b), the trial court
discussed section 2511(b) and the case law pursuant to that section, and
(Footnote Continued Next Page)
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argues that the trial court’s findings that termination was proper under
subsections 2511(a)(1), (2), and (5) were not supported by clear and
convincing evidence.7 We have held that to affirm a termination of parental
rights, we need only agree with the trial court as to any one subsection of
section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc). We will focus on subsections 2511(a)(1) and (2), 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.
(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
_______________________
(Footnote Continued)
found it applicable in terminating Mother’s parental rights. See Termination
Op. at 18-21. On appeal, Mother is not challenging the failure of the orders
to expressly provide that her parental rights were terminated under section
2511(b).
7
On appeal, Mother does not argue that the trial court erred in finding
termination proper under section 2511(b), and we need not address that
provision here. We note, however, that the trial court’s finding that
termination of Mother’s parental rights would best serve the developmental,
physical, and emotional needs and welfare of Children was supported by the
record and was not an abuse of discretion. See Termination Op. at 21; 23
Pa.C.S. § 2511(b).
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incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
23 Pa.C.S. § 2511(a)(1), (2).
With respect to subsection 2511(a)(1), our Supreme Court has held
that “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.” In re
Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998). Further, this
Court has stated:
the trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his or her
parental rights, to determine if the evidence, in light of the
totality of the circumstances, clearly warrants the
involuntary termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (internal citations
omitted).
To satisfy the requirements of subsection 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
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refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa.Super. 2003). 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).
At the conclusion of its memorandum and order, the trial court stated
the following:
[A.G.S.] and [M.R.S.] have not been in their Parents’
physical custody since September of 2014. Even before
that time parents struggled to provide proper parental care
and control. They were each utilizing illegal controlled
substances and dependent on [P]aternal [G]randmother,
[M.S.] to provide care [for M.R.S.]. . . . Although Mother
indicates now that she will not allow Father to reside with
her and the [C]hildren due to his potential drug use
(Parents recently had a third child), the Parents’ history of
interdependency also raises a concern that Parents will re-
establish their relationship in the future. Based on their
past history the court finds that Parents’ recovery is less
likely if they reunite.
From the initiation of the dependency action in
September of 2014 until August of 2015[,] Mother made
very poor progress addressing her addiction. She was
unsuccessfully discharged from inpatient treatment on two
occasions and she tested positive on several occasions for
non–prescribed narcotic use. In August of 2015[,] she
obtained a prescription for Subutex and her tests since
that date have only been positive for Subutex. She
testified in January of 2016 that she and her doctor had
plans to “wean her off of Subutex.” However, she asserts
that that has not yet occurred because she discovered
after the January 2016 hearing that she was pregnant with
a third child and it was dangerous to her unborn child, who
would be born addicted to Subutex, for her to suddenly
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stop taking Subutex. Mother’s treating physician was not
called to provide an opinion regarding Mother’s treatment
and progress. Therefore, the court has concerns about the
reliability of Mother’s self-serving statements about her
current and future treatment. Mother made no progress
regarding any of the requirements of the reunification
plans until after August of 2015. From September 2014
until August of 2015[,] she was frequently incarcerated
due to violations of her criminal supervision; and, she
failed to successfully comp[l]ete inpatient treatment. She
had no visits with the children for extended periods of
time, did not attend medical appointments for the
[C]hildren or meet with and complete ordered services
such as Parents as Teachers. Mother asserts that she
couldn’t attend visits, etc. because she was in jail or
inpatient treatment - and, in a technical sense this is true.
However, this argument ignores the fact that she was in
jail or in inpatient treatment because she utilized
controlled substances and did not successfully complete
treatment. Therefore, the source of the lack of contact
and progress goes directly back to Mother’s drug use and
drug addiction. Mother has made greater progress since
August of 2015 when she was prescribed Subutex. She
has attended visits on a more regular basis. However, she
has not completed the Parents as Teachers Program and
her housing situation still appears to be unclear. Mother
continues to struggle[] to meet her basic needs.
...
Regarding the specific assertions for termination the
court finds:
23 Pa. C.S. § 2511(a)(1): . . . Regarding Mother, from
September of 2014 until August of 2015 she also: made
limited efforts to maintain contact with the children; failed
to successfully follow her drug and alcohol treatment plan;
and, failed to maintain contact with and productively
cooperate with service providers and [CYS]. She made
greater progress after August of 2015 when she obtained a
prescription for Subutex. However, the relevant time
period regarding 23 Pa.C.S. §2511(a)(1) is up to the time
of the filing of the termination petition which was April 28,
2015. Therefore, the court finds that the requirements of
(a)(1) have been shown. Further, even after August of
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2015 reunification was still not possible. Mother had made
some progress but still: had not completed the Parent’s as
Teachers program; had limited contact with [C]hildren
and, therefore, limited bond with them; had a third child
born addicted to narcotics; was still involved in an
unsettling relationship with Father; and had an unclear
housing plan.
23 Pa. C.S. § 2511(a)(2): as discussed above the court
finds that [M.R.S.] and [A.G.S.] have been without proper
parental care and control since prior to when they were
placed in CYS’s custody in September of 2014. Further,
the court finds that the parents[’] incapacity, which centers
around, but is not solely limited to, their narcotic use and
addiction, will not be remedied by the parents in the near
future. Therefore, CYS had demonstrated, by clear and
convincing evidence, that the grounds for (a)(2) have also
been met.
Termination Op. at 17-21.
We conclude that sufficient evidence supported the trial court’s finding
that termination of Mother’s parental rights was proper pursuant to
subsections 2511(a)(1) and (2) and that the trial court did not abuse its
discretion. Accordingly, we affirm the orders terminating Mother’s parental
rights with regard to Children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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