In the Interest of: A.J.M., a Minor ( 2016 )


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  • J-S51045-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: A.J.M., A MINOR              IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    APPEAL OF: T.M., MOTHER
    No. 487 EDA 2016
    Appeal from the Decree January 12, 2016
    in the Court of Common Pleas of Philadelphia County
    Family Court at Nos.: 51-FN-001446-2014
    CP-51-AP-0000522-2015
    BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 01, 2016
    Appellant, T.M. (Mother), appeals from the decree of the Court of
    Common Pleas of Philadelphia County, entered January 12, 2016, that
    terminated her parental rights to her son, A.J.M. (Child), born in May of
    2011, and changed Child’s goal to adoption. We affirm on the basis of the
    trial court’s opinion.1
    The trial court aptly summarized the events that led the Philadelphia
    Department of Human Services (DHS) to file a petition for the involuntary
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    In a separate decree, on the same date, the trial court also granted the
    petition for the involuntary termination of the parental rights of Child’s
    father. Only the decree as to Mother is at issue in this appeal.
    J-S51045-16
    termination of Mother’s parental rights. (See Trial Court Opinion, 3/16/16,
    at unnumbered pages 1-2). We respectfully refer the reader to that opinion
    for a complete recitation of the facts of this case.
    For the convenience of the reader, we note briefly that in February of
    2014 Mother left Child, then still two years of age, in the care and custody of
    his paternal grandmother.         (See id.).     Mother moved into the home of a
    male friend. Mother has a history of drug and alcohol abuse. She suffers
    from bi-polar disorder.         She also has violent tendencies, a history of
    domestic violence and transiency.
    On August 14, 2015, DHS filed a petition to terminate Mother’s
    parental rights. The trial court held a hearing on the petition on January 12,
    2016.     The only person to testify at that hearing was DHS caseworker,
    Jasmin Ellum.       The trial court entered its decree terminating Mother’s
    parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b)
    on January 12, 2016.2
    Mother raises two questions on appeal:
    1. Did the [t]rial [c]ourt err when it found that the Department
    of Human Services by clear and convincing evidence had met its
    burden to terminate [Mother’s] parental rights pursuant to 23
    Pa.C.S.A.    §2511(a)(1),      §2511(a)(2);    §2511(a)(5)   and
    §2511(a)(8)[?]
    ____________________________________________
    2
    Mother timely filed her notice of appeal and statement of errors complained
    of on appeal on February 9, 2016. The trial court entered its opinion on
    March 16, 2016. See Pa.R.A.P. 1925.
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    J-S51045-16
    2. Did the [t]rial [c]ourt err when it found that the termination of
    [M]other’s parental rights was in [C]hild’s best interests and that
    the Department of Human Services had met its burden pursuant
    to 23 Pa. C.S.A. §2511(b)[?]
    (Mother’s Brief, at vi).
    Our scope and standard of review are well-settled:
    In an appeal from an order terminating parental rights, our
    scope of review is comprehensive: we consider all the evidence
    presented as well as the trial court’s factual findings and legal
    conclusions. However, our standard of review is narrow: we will
    reverse the trial court’s order only if we conclude that the trial
    court abused its discretion, made an error of law, or lacked
    competent evidence to support its findings. The trial judge’s
    decision is entitled to the same deference as a jury verdict.
    In re L.M., 
    923 A.2d 505
    , 511 (Pa. Super. 2007) (citations omitted).
    Further,
    Where the hearing court’s findings are supported by competent
    evidence of record, we must affirm the hearing court even
    though the record could support an opposite result.
    We are bound by the findings of the trial court which
    have adequate support in the record so long as the
    findings do not evidence capricious disregard for
    competent and credible evidence. The trial court is free to
    believe all, part, or none of the evidence presented, and is
    likewise free to make all credibility determinations and
    resolve conflicts in the evidence. Though we are not
    bound by the trial court’s inferences and deductions, we
    may reject its conclusions only if they involve errors of law
    or are clearly unreasonable in light of the trial court’s
    sustainable findings.
    In re M.G., 
    855 A.2d 68
    , 73-74 (Pa. Super. 2004) (citations omitted).
    We also note our standard of review of a change of goal:
    When we review a trial court’s order to change the
    placement goal for a dependent child to adoption, our standard
    is abuse of discretion. In order to conclude that the trial court
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    J-S51045-16
    abused its discretion, we must determine that the court’s
    judgment was manifestly unreasonable, that the court did not
    apply the law, or that the court’s action was a result of partiality,
    prejudice, bias or ill will, as shown by the record.
    In the Interest of S.G., 
    922 A.2d 943
    , 946 (Pa. Super. 2007) (citation
    omitted).
    Here, the trial court terminated Mother’s parental rights pursuant to 23
    Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b).        In order to affirm the
    termination of parental rights, this Court need only agree with any one
    subsection of Section 2511(a). See In re B.L.W., 
    843 A.2d 380
    , 384 (Pa.
    Super. 2004) (en banc), appeal denied, 
    863 A.2d 1141
     (Pa. 2004).
    Requests to have a natural parent’s parental rights terminated are
    governed by 23 Pa.C.S.A. § 2511 (The Adoption Act), which provides, in
    pertinent part:
    § 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.
    *    *    *
    (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,
    -4-
    J-S51045-16
    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), (b).
    A party seeking termination of a parent’s rights bears the burden of
    proving the grounds to so do by “clear and convincing evidence,” a standard
    which requires evidence 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.” In re T.F., 
    847 A.2d 738
    , 742 (Pa.
    Super. 2004) (citation omitted). Furthermore,
    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 convenient time to perform one’s parental
    responsibilities while others provide the child with his or her
    physical and emotional needs.
    In the Interest of K.Z.S., 
    946 A.2d 753
    , 759 (Pa. Super. 2008) (citation
    omitted).
    To terminate parental rights pursuant to section 2511(a)(1), the
    person or agency seeking termination must demonstrate through clear and
    convincing evidence that, for a period of at least six months prior to the
    filing of the petition, the parent’s conduct demonstrates a settled purpose to
    relinquish parental rights or that the parent has refused or failed to perform
    -5-
    J-S51045-16
    parental duties. See In re Adoption of M.E.P., 
    825 A.2d 1266
    , 1272 (Pa.
    Super. 2003).
    With respect to subsection 2511(a)(1), our Supreme Court has held:
    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 Adoption of Charles E.D.M. II, 
    708 A.2d 88
    , 92 (Pa. 1998) (citation
    omitted). Additionally,
    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) (citations omitted).
    The Adoption Act provides that a trial court “shall give primary
    consideration to the developmental, physical and emotional needs and
    welfare of the child.”    23 Pa.C.S.A. § 2511(b).   The Act does not make
    specific reference to an evaluation of the bond between parent and child but
    our case law requires the evaluation of any such bond. See In re E.M., 
    620 A.2d 481
    , 485 (Pa. 1993). However, this Court has held that the trial court
    is not required by statute or precedent to order a formal bonding evaluation
    -6-
    J-S51045-16
    performed by an expert. In re K.K.R.-S., 
    958 A.2d 529
    , 533 (Pa. Super.
    2008).
    After a thorough review of the record, the briefs of the parties, the
    applicable law, and the well-reasoned opinion of the trial court we conclude
    that there is no merit to the issues Appellant has raised on appeal. The trial
    court opinion properly disposes of the questions presented. (See Trial Ct.
    Op., at 2-5) (concluding that: (1) for a period of six months leading up to
    the filing of the petition, Mother refused or failed to perform her parental
    duties; and (2) DHS met its burden by clear and convincing evidence to
    prove that terminating Mother’s parental rights was in the best interest of
    Child). Accordingly, we affirm on the basis of the trial court’s opinion.
    Decree affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/1/2016
    -7-
    Circulated 08/22/2016 11:14 AM
    IN THE COURT OF COMMON PLEAS
    FOR THE COUNTY OF PHILADELPHIA                 ;:i:i,·: .:              I •.
    l : '.
    FAMILY COURT DIVISION
    INRE: AM.                                             CP-51-DP-0001448-2014
    CP-51-AP-0000522-2015
    APPEAL OF. T.M., Mother                               487 EDA 2016
    OPINION
    Irvine, J.
    This appeal arises from this Court's order on January 1.2, 2016 terminating the parental rights of
    Ti · CM.... , mother. Mother's parental rights were terminated pursuant to the petition filed
    on behalf of the Department of Human Services (DHS) by the City of Philadelphia Solicitor 's
    Office.
    Deborah A. Fegan, counsel for mother, filed a timely appeal from the January 12, 2016 order
    terminating parental right, .vith attached ( cucise Statements of Errors, Affidavits of Service, and
    other related documents necessary to perfect this appeal.,
    Factua] and Procedural Background
    A summary of the relevant procedural history is set forth as follows:
    The child, AM. was born on May 24, 2011.
    In February, 2014, the Mother left the child, AM. in the care and custody of the paternal
    grandmother (PGM), Biiii ~- The mother began living in the home of a male friend.
    On March 26, 2014, PGM petitioned the Domestic Relations Branch of Family Court for primary
    physical and legal custody.
    In May, 2014, the mother began visiting PGM and requesting permission to take the child, AM.,
    from the home. The PGM did not kno v where the mother resided.
    On June 18, 2014, the mother indicated to DHS that she was going to contact them and disclose
    her address. DHS needed the address to assess the safety of AM. 's thirteen month old sibling.
    However, the mother failed to contact DHS.
    On June 19, 2014, the mother visited PGM' s home and attempted to remove the child. The mother
    became extremely hostile and the police were called to the home.
    The mother had a history of drug and alcohol abuse. She suffers from bi-polar disorder and has
    violent tendencies. She was not receiving treatment. The mother has a history of domestic
    violence and transiency.
    On June 19, 2014, DHS obtained an Order of Protective Custody (OPC) for the child. The child
    remained in the care of the PGM.
    A shelter care hearing was held on June 20, 2014 before Master Lynne M. Summers. Master
    Summers lifted the OPC and ordered the temporary commitment of AM. to the care and custody
    ofDHS.
    On June 27, 2014, an adjudicatory hearing was held before the Honorable Jonathan Q. Irvine.
    Judge Irvine adjudicated AM. dependent and committed him to the care and custody of DHS.
    The mattej.was listed on a regular basis before judges of the Philadelphia Court of Common Pleas
    - Family Court Division - Juvenile Branch pursuant to section 6351 of the Juvenile Act, 42 Pa
    C.S.A §6351, and evaluated for th~ pnrpose of determining or reviewing the permanency plan of
    the child.                   ·• '"
    In subsequent hearings, the DRO' s reflect the Court's review and disposition as a result of evidence
    presented, addressing, and primarily with, the goal of finalizing the permanency plan: .
    On January 12, 2016, a Termination of Parental Rights hearing for the mother, T.M., was held in
    this matter. The Court found by clear and convincing evidence that mother's parental rights of
    AM. should be terminated pursuant to the Pennsylvania Juvenile Act. Furthermore, the Court
    held it was in the best interest of the child that the goal be changed to adoption.
    The instant timely appeals of the mother follows.
    Discussion:
    The grounds for involuntary termination of parental rights are enumerated in the Adoption Act at
    23 Pa. C.S.A §2511. In the present case, mother's parental rights were terminated based on
    §251l(a) (1), (2), (5) and (8) and §251 l(b).
    §2511( a) provides that parental rights may be terminated based on any one of the grounds
    enumerated therein:
    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:
    In proceedings to involuntary terminate parental rights the burden of proof is on the party seeking
    termination to establish by clear and convincing evidence the existence of grounds for termination.
    In re Adoption o(Atencio, 
    539 Pa. 161
    , 
    650 A.2d 1064
     (1994)
    Under Pennsylvania law, to satisfy section 2511 ( a) (1 ), the moving party must produce clear and
    convincing evidence of conduct sustained for at least six months prior to the filing of the
    termination petition, which reveal a settled intent to relinquish parental claim to a child or a refusal
    or failure to perform parental duties. The 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 hesitation of the truth of the precise facts in issue. In re JD. WJV!. 810
    A2d 688, 690 (Pa.Super, 2002).
    It is clear from the record that for a period of six ( 6) months leading up to the filing of the Petition
    for Involuntary Termination, mother failed to perform parental duties for the child. The court found
    by clear and convincing evidence that mother refused or failed to perform her parental duties.
    In the instant case, the mother did not complete her Single Case Plan (SCP) goals. The Community
    Umbrella Agency (CUA) social worker identified the mother's SCP objectives as: 1) to complete
    drug and alcohol treatment, 2) to complete parenting classes and 3) to complete mental health
    treatment. (N.T., 1-12-16, p. 8). The mother did not complete drug and alcohol treatment.
    Furthermore, the mother did not complete parenting classes. Lastly, the mother did not complete
    mental health treatment. (N.T., 1-12-16, pgs. 8-9)
    A parent has an affirmative obligation to act in his child's best interest. In reference to parental
    contact, "to be legally significant, the contact must be steady and consistent over a period of
    time, contribute to the psychological health of the child, and must demonstrate a serious intent on
    the part of the parent to recultivate a parent-child relationship, and must demonstrate a
    willingness and capacity to undertake the parental role". In re DJS., 737 A2d 283,286 (1999)
    (quoting In re Adoption of Hamilton, 
    379 Pa.Super. 274
    , 
    549 A.2d 1291
    , 1295 (1988)).
    In the instant matter, the child, A.M., has been in placement care for approximately eighteen
    months. The testimony established that the child is in a loving, safe stable home and termination
    of the mother's parental rights is in the best interest of the child. (N.T., 1-12-16, pgs. 11-12).
    Section 2511 (a) (2) requires that "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 condition and causes of the incapacity,
    abuse, neglect or refusal, cannot or will not be remedied by the parent. 23 Pa. C.S.A. §2511 (a)
    (2).
    Courts have further held that the implications of a parent's limited success with services geared to
    remedy the barriers to effective parenting can also satisfy the requirements of §2511 ( a) (2). In the
    matter of B.L. W. 
    843 A.2d 380
     (Pa. Super. 2004), the Court's grave concerns about Mother's
    ability to provide the level of protection, security and stability" that her child needed was sufficient
    to warrant termination. 
    Id.
     at 388
    Termination of parental rights under §251 l(a)(2) is not limited to affirmative misconduct but may
    include acts ofrefusal as well as incapacity to perform parental duties. In re A.L.D., 797 A.2d326,
    337 (Pa. Super.2002).
    In the instant case, the CUA social worker testified that the mother's visits never progressed from
    supervised visits to to unsupervised visits because she did not complete any of her SCP objectives.
    (N.T., 1-12-16, p. 9). In November, 2015, the mother's visits with the child were suspended for
    two weeks because the mother threatened to physically "fight" the receptionist at the agency when
    the mother saw her. (N.T., 1-12-16, p. 9-10). Furthermore, the social worker testified that the
    mother stated that she was going to check herself into a mental health facility because she was
    having suicidal ideations. The mother did not complete mental health treatment. The social
    worker has no record of completion of mental health treatment since that statement. (N.T., 1-12-
    16, p. 10). Moreover, the mother had three positive drug screens in June, September and December,
    2014. (DHS Exhibit #3) Lastly, the mother did not complete drug and alcohol treatment.
    §251 l(a) (5) requires that:
    (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.
    §251 l(a) (8) states:
    (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 .
    In order to te1minate the parental rights, the party seeking termination must prove by clear and
    convincing evidence that the termination is in the best interest of the child. 23 Pa. C.S.A. §251 l(b);
    In re Bowman. 
    436 Pa. Super. 647
     A.2d 217 (1994). The best interest of the child is determined
    after consideration of the needs and welfare of the child. The trial court must examine the
    individual circumstances of each case and consider all explanations offered by the parent facing
    termination of his parental rights to determine if the evidence in light of the totality of the
    circumstances clearly warrants involuntary termination.
    When determining the best interest of a child, many factors are to be analyzed, "such as love,
    comfort, security and stability. In re Adoption of T.B.B.. 
    787 A.2d 1007
    , 1013-1014 (Pa. Super.
    2003). Another factor that a court is to consider is what, if any bond exists for the child. In re
    Involuntary Termination o(C. WS.M and KA.L.lvl, 
    839 A.2d 410
    ,415 (Pa. Super. 2003).
    The termination of parental rights is controlled by 23 Pa. C.S.A §251 l(a). Under this statute, the
    trial court must engage in a bifurcated process in which it initially focuses on the conduct of the
    parent under Section 2511 (a). In the Interest ofB.C.. 
    36 A.3d 601
     (Pa. Super. 2012). If the trial
    court determines that the parent's conduct warrants termination under Section 2511 ( a), it must
    then engage in an analysis of the best interest of the child under Section 2511 (b ). See 
    id.
    Pursuant to Section 2511 (b), the trial court must take in account whether a natural parental bond
    exists between child and parent, and whether termination would destroy an existing, necessary and
    beneficial relationship. In Re CS., 
    761 A.2d 1197
    , 1202 (Pa. Super. 2000).
    In the instant matter, the CUA social worker testified that the kinship parent, the PGM, and the
    child have the primary parent/child relationship. The child looks to the PGM for all of his needs.
    The PGM provides the child with love, safety, stability and support. The PGM meets the medical,
    general, developmental and therapeutic needs of the child. (N.T., 1-12-16, p. 11). The social
    worker testified that the child would not suffer irreparable harm if his mother's rights were
    terminated and the goal were changed to adoption. Termination of parental rights would be in the
    best interest of the child. (N.T., 1-12-16, p. 11-12).
    The Trial Court found by clear and convincing evidence that the Department of Human Services
    met their statutory burden pursuant to 23 Pa. C.S.A. § 2511 (a) & (b) (N.T., 1-12-16, p. 15) and
    that it was in the best interest of the child to change the goal to adoption.
    Conclusion:
    Accordingly, the Trial Court' s Decree entered on January 12, 2016 terminating the parental rights
    of T.M. should properly be affirmed.
    By the Court
    J.
    IN THE COURT OF COMMON PLEAS
    FOR THE COUNTY OF PHILADELPHIA
    FAMILY COURT DIVISION
    INRE:           A.J.M., Minor                                    No. 487 EDA 2016
    APPEAL OF: T.M., Mother
    PROOF OF SERVICE
    I hereby certify that this court is serving today, Wednesday, March 16, 2016 a copy of the
    foregoing Opinion, by regular mail, upon the following person(s):
    The names and addresses of all persons served are as follows:
    Deborah Ann Fegan, Esquire
    1800 JFK Blvd - Ste 300
    Philadelphia, PA 19103
    Marguerite C: Gualtieri, Esquire
    Support Center for Child Advocates
    1900 Cherry Street
    Philadelphia, PA 19103-1405
    Lisa Marie Visco, Esquire
    1800 JFK Blvd - Ste 300
    Philadelphia, PA 19103
    Michael B. Joyce, Esquire
    City of Philadelphia Law Department
    1515 Arch Street -161h Floor
    Philadelphia, PA 19102-1595
    BY THE COURT: