In the Int. of: R.J.B., Appeal of: A.B. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.J.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.B., MOTHER : No. 1840 EDA 2022
Appeal from the Decree Entered July 14, 2022
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000155-2022
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KING, J.: FILED DECEMBER 28, 2022
Appellant, A.B. (“Mother”) appeals from the decree entered in the
Philadelphia County Court of Common Pleas, which granted the petition of the
Philadelphia Department of Human Services (“DHS”) for the involuntary
termination of Mother’s parental rights to her minor child, R.J.B. (“Child”). We
affirm.
The relevant facts and procedural history of this case are as follows. On
February 10, 2020, when Child was two years old, DHS received a report
alleging that Mother struck Child, showed signs of severe depression and
mental instability and did not have family support. On March 7, 2020, DHS
received a second report regarding Mother from Thomas Jefferson Hospital
after the birth of her second child. The hospital staff reported observing
Mother speak very harshly to Child, cursing and yelling at Child, and being
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unresponsive to the newborn baby’s needs.
As a result, the Community Umbrella Agency (“CUA”) began providing
in-home services for Mother on March 25, 2020. At the time, Mother resided
at a shelter where she was observed striking Child, calling Child names and
refusing to provide basic care for Child. Staff at the shelter noted that Mother
would often refuse to allow Child entry into their room and leave Child alone
in the hallway. CUA attempted to implement a safety plan which included
services for mental health, parenting, employment, and housing. However,
Mother was largely unresponsive to CUA’s intervention efforts, often physically
turning her back to CUA staff and refusing to engage with them. Mother was
also largely uncooperative with CUA’s efforts to provide services for Child who
appeared to be developmentally behind. Additionally, CUA staff noted that
Mother was unable to appropriately redirect Child, often screaming and
cursing at her.
Mother obtained transitional housing through the Philadelphia Housing
Authority (“PHA”). After CUA staff observed Mother strike Child and curse at
her, DHS filed a petition to adjudicate Child dependent. The trial court
adjudicated Child dependent on June 16, 2020, and ordered DHS to supervise
the family. The court further ordered Mother to seek mental health treatment,
participate in anger management classes, obtain housing, obtain employment
and ensure that Child’s needs were met. After an incident where Mother
refused to allow CUA staff to enter her home while Child was screaming and
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crying, CUA obtained an order of protective custody on August 6, 2020.
Pursuant to the order, Child was removed from Mother’s care and placed in
foster care. At various permanency review hearings, the trial court further
ordered Mother to undergo a parenting capacity evaluation, a behavioral
health services evaluation, and to follow all recommendations.
On March 8, 2022, DHS filed a petition seeking to involuntarily terminate
Mother’s parental rights to Child. The trial court held an evidentiary hearing
on July 14, 2022. Erica Butler, a CUA supervisor, testified to the factual
history stated above. Ms. Butler further testified that Mother did not
adequately comply with court ordered requirements prior to the termination
hearing. Mother did not undergo a parenting capacity evaluation. Mother did
attend a behavioral health services evaluation but did not comply with the
recommendation that she participate in cognitive behavior therapy and mood
regulation therapy. Although Mother participated in an anger management
program and parenting classes, Mother continued to exhibit inappropriate
behavior to Child and CUA staff. During supervised visits with Child, Mother
was unable to properly redirect Child and continued to berate her, often yelling
and cursing at Child. When CUA staff attempted to redirect Mother, Mother
would become “explosive.”
Additionally, Ms. Butler testified that Mother failed to cooperate with
PHA to acquire permanent housing. At the time of the hearing, Mother was in
the process of being evicted from her transitional housing. Ms. Butler stated
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that she attempted to coordinate several meetings with Mother and PHA staff
to assist Mother in securing appropriate housing but Mother refused to
cooperate. Additionally, PHA staff sent Mother monthly emails of housing
leads but Mother refused to meet with PHA staff or follow-up on the housing
leads. When Ms. Butler inquired about Mother’s housing needs, Mother stated
that it was CUA’s job to find her housing. Additionally, Ms. Butler testified
that Mother provided one or two paystubs throughout the pendency of the
case as proof of employment but one of the paystubs appeared to be
fraudulent. Therefore, Ms. Butler was unable to verify if Mother was
employed.
Mother has attended between forty to fifty percent of her supervised
visits with Child. Mother has never progressed past supervised visitation and
many of the same issues persist in Mother’s ability to parent Child. Ms. Butler
testified that Child’s relationship with Mother seems very diminished and
detached. During visits, Mother does Child’s hair and there is little to no
communication between them. Child becomes devoid of personality and
completely closes up when she is around Mother. Additionally, Child has
physical reactions, such as nightmares and wetting the bed, after her visits
with Mother.
Child has been in her current foster home since May 21, 2021. Child’s
foster family provides a loving, safe, stable environment for Child and Child is
flourishing. Child is taking dance lessons and enjoying the role of being a
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sibling to the foster family’s new baby. Child’s primary parent-child bond is
with her foster mother. Child calls her foster mother “mom” while she refers
to Mother by her name. Additionally, when Ms. Butler first tried to speak to
Child about the prospect of returning to live with Mother, Child began
screaming and crying. Whenever Ms. Butler brings up the conversation, Child
becomes visibly upset and clearly stated that she does not wish to leave her
foster mother.
Mother chose to participate in the termination hearing via phone.
Partway through Ms. Butler’s testimony, Mother disconnected herself from
participating in the hearing and did not return or provide testimony. At the
conclusion of the evidence, the trial court involuntarily terminated Mother’s
parental rights to Child on July 14, 2022.1 On July 18, 2022, Mother filed a
timely notice of appeal and a contemporaneous concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i).
Mother raises the following issues for our review:
Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, A.B. pursuant to
23 Pa.C.S.A. section 2511(a)(1) where Mother presented
evidence that she tried to perform her parental duties.
Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, A.B. pursuant to
23 Pa.C.S.A. section 2511(a)(2) where Mother presented
evidence that she has remedied her situation by maintaining
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1 Child’s father has not participated in any proceedings throughout the
pendency of this case despite multiple efforts to locate and communicate with
him.
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housing, taking parenting classes and anger management
classes and has the present capacity to care for her child.
Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, A.B. pursuant to
23 Pa.C.S.A. section 2511(a)(5) where evidence was
provided to establish that the child was removed from the
care of the Mother and Mother is now capable of caring for
her child.
Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, A.B. pursuant to
23 Pa.C.S.A. section 2511(a)(8) where evidence was
presented to show that Mother is now capable of caring for
her child after she completed parenting classes, secured and
maintained housing and completed anger management.
Whether the trial court erred and/or abused its discretion by
terminating the parental rights of Mother, A.B. pursuant to
23 Pa.C.S.A. section 2511(b) where evidence was presented
that established she had lived with her Mother for the most
part of her life. Additionally, Mother maintained that bond
by visiting with her.
(Mother’s Brief at 7).
In her issues combined, Mother contends that she has never evidenced
a settled purpose of relinquishing her parental rights to Child nor has she
refused to perform her parental duties. Mother argues that she has made
significant progress in meeting her court-ordered goals by completing a
mental health evaluation, an anger management program and parenting
classes. Mother further avers that there was insufficient evidence to
demonstrate a present incapacity to parent Child. Mother claims that she has
obtained housing and employment and has the present capacity to provide a
safe environment for Child. Additionally, Mother maintains that she regularly
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attends her visits with Child and has a strong parental bond with Child. Mother
concludes that the trial court erred in finding that there were grounds to
involuntarily terminate Mother’s parental rights and this Court must vacate
the decree terminating her parental rights. We disagree.
Appellate review of 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).
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
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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 to Child 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:
(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 [her] 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.
* * *
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(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve the
needs and welfare of the child.
* * *
(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 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)(1), (2), (5), (8), and (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
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re Z.P., supra at 1117.
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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
To satisfy the requirements of section 2511(a)(1):
[T]he 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 addition,
Section 2511 does not require that the parent demonstrate
both a settled purpose of relinquishing parental claim to a
child and refusal or failure to perform parental duties.
Accordingly, parental rights may be terminated pursuant to
Section 2511(a)(1) if the parent either demonstrates a
settled purpose of relinquishing parental claim to a child or
fails to perform parental duties. Once the evidence
establishes a failure to perform parental duties or a settled
purpose of relinquishing parental rights, the court must
engage in three lines of inquiry: (1) the parent’s explanation
for his or her conduct; (2) the post-abandonment contact
between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant
to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
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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). “Parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. 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).
“Termination of parental rights under Section 2511(a)(5) requires that:
(1) the child has been removed from parental care for at least six months; (2)
the conditions which led to removal and 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 Z.P., supra at 1118.
Regarding the six-month period prior to filing the termination petition:
[T]he 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 …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), appeal denied, 582 Pa.
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718, 872 A.2d 1200 (2005) (internal citations omitted).
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (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, 1275-76 (Pa.Super.
2003). “Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.” In re
A.R., 837 A.2d 560, 564 (Pa.Super. 2003). 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 DHS supplied over a realistic time. Id. 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 DHS’ services. In re Adoption of T.B.B., 835
A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P., supra.
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(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
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close attention to the effect on the child of permanently severing the bond.”
Id. Significantly:
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.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
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). “[A] parent’s basic constitutional right to the
custody and rearing of …her child is converted, upon the failure to fulfill …her
parental duties, to the child’s right to have proper parenting and fulfillment of
[the child’s] potential in a permanent, healthy, safe environment.” Id. at 856.
Instantly, the court determined that termination was proper under
Section 2511(a)(1), (2), (5) and (8). Regarding Section 2511(a)(1), the court
found that Mother has failed to take any action to demonstrate her ability or
desire to parent Child for well over six months prior to the filing of the
termination petition. The record supports the court’s finding. Although
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Mother has taken parenting classes and completed an anger management
program, Mother’s persistent volatile interactions with Child and CUA staff
demonstrate Mother’s unwillingness to learn skills to properly parent Child.
Further, Mother has failed to follow through with the mental health treatment
recommendations of her behavioral health services evaluation. Contrary to
Mother’s assertions that she acquired appropriate housing and employment,
the evidence demonstrates that Mother has taken no steps to acquire
permanent housing and rebuffed all efforts to assist her in this endeavor. Ms.
Butler also testified that Mother has not provided any reliable evidence of
employment. Additionally, Mother did not testify or provide any explanation
for her conduct. Accordingly, we discern no error in the court’s determination
that termination was proper pursuant to Section 2511(a)(1). See In re
Z.S.W., supra.Regarding Section 2511(a)(2), the court determined that Mother does
not have the present capacity to parent Child and has made little progress
throughout the pendency of this case. Mother refuses to cooperate with CUA
or PHA to acquire appropriate housing or employment in order to provide a
safe and stable environment for Child. Additionally, Mother has only attended
fifty percent of her visits with Child and has not progressed beyond supervised
visitation. Mother’s interactions with Child during these visits demonstrate
Mother’s inability to appropriately redirect or communicate with Child.
Further, Mother’s anger management issues persist and result in upsetting
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Child to such a degree that she has negative physical reactions to visits with
Mother. On this record, we agree with the court that termination was proper
under Section 2511(a)(2). See In Interest of Lilley, supra.Additionally, Child had been removed from Mother’s care since August
6, 2020, which is well over the respective six and twelve-month thresholds of
Sections 2511(a)(5) and (8). See 23 Pa.C.S.A. § 2511(a)(5), (8). The court
found that the conditions which led to Child’s removal continue to exist and
Mother has not taken action to remedy those conditions in a reasonable time.
The court also noted that Mother has not cooperated with CUA or PHA in their
attempts to provide her with services. As previously stated, Mother’s
supervised visits with Child demonstrate that Mother’s anger management
issues persist, and she has not acquired the skills required to properly parent
Child. Based on Mother’s uncooperative and obstructive conduct since Child
has been removed from her care, the court found that Mother is unlikely to
remedy these issues in the near future to be able to provide Child with the
care she requires. Accordingly, we discern no error with the court’s
determination that termination was proper under Sections 2511(a)(5) and (8).
See In re Z.P., supra.Regarding Section 2511(b), the court determined that there was no
parental bond between Mother and Child and termination was in Child’s best
interests. The record supports the court’s conclusion. Ms. Butler testified that
there is minimal communication between Mother and Child during their visits
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and Child closes up entirely when she is around Mother. Additionally, Mother
continues to berate and upset Child such that Child has nightmares and wets
the bed after visits with Mother. In comparison, Child has a strong parental
bond with her foster mother who she calls “mom” and a positive relationship
with the rest of her foster family. All of Child’s needs are met and Child is
happy and thriving in her current placement. Further, Child has expressed a
clear and strong desire to remain with her foster family. On this record, the
court correctly determined that terminating Mother’s parental rights would not
destroy an existing, necessary, and beneficial relationship for Child and would
best serve Child’s needs and welfare. See In re Z.P., supra.Based upon the foregoing, the record supports the court’s conclusion
that clear and convincing evidence supported termination of Mother’s parental
rights under Sections 2511(a)(1), (2), (5), (8) and (b). Id. Consequently,
we affirm the decree terminating Mother’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
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