In Re: Adoption of A.N.S. Appeal of: L.R.W. mother ( 2016 )


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  • J-S86045-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: ADOPTION OF: A.N.S.,               :       IN THE SUPERIOR COURT OF
    S.N.S., AND T.I.W.S.                      :             PENNSYLVANIA
    :
    :
    :
    APPEAL OF: L.R.W., NATURAL                :
    MOTHER                                    :          No. 1260 WDA 2016
    Appeal from the Order Dated July 19, 2016
    In the Court of Common Pleas of Cambria County
    Orphans’ Court at No(s): 2016-8 IVT, 2016-9 IVT, 2016-10 IVT
    BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
    MEMORANDUM BY GANTMAN, P.J.:                       FILED DECEMBER 21, 2016
    Appellant, L.R.W. (“Mother”), appeals from the order entered in the
    Cambria County Court of Common Pleas, which involuntarily terminated her
    parental rights to minor children, A.N.S., S.N.S., and T.I.W.S. (“Children”).
    We affirm.
    The trial court set forth the relevant facts and procedural history of
    this case as follows:
    1.       On January 6, 2016, [CYS] filed a Petition to
    Involuntarily Terminate the Parental Rights of [C.S.
    (“Father”)], then age 51, and [Mother], then age 34,
    biological parents of [Children].
    *    *       *
    4.      Hearings were conducted on May 13, 2016, and
    June 17, 2016.    Both parents were present at the
    hearings[.]
    _____________________________
    *Former Justice specially assigned to the Superior Court.
    J-S86045-16
    5.      [A.N.S.] and [S.N.S.] had been adjudicated
    dependent in July 2006 and placed in the care of CYS.
    However, they were returned to [Mother] in August of
    2008 and services [were] terminated to the family.
    6.       CYS returned in August of 2013 due to reports
    between May 2013 and July 2013 that [Mother] did not
    have the ability to supervise [Children] and [F]ather was
    incarcerated. The two youngest children, [S.N.S.] and
    [T.I.W.S.], then ages [7] and 2, were on the street alone,
    and during the past year [A.N.S.] and [S.N.S.] were
    absent or late for school.[1]
    7.       After the initial adjudication hearing on August
    21, 2013, the Juvenile Court provided a list of actions for
    [Mother] to take, including successfully completing
    parenting classes, supervision of [Children], financial
    responsibility classes, and making sure that the two [older]
    children attended school on a regular basis. …
    8.      Permanency Review Hearings were held on
    December 30, 2013 and January 29, 2014. The Juvenile
    Court found [Mother] to be only minimally compliant with
    the Permanency Plan and [F]ather had no compliance with
    the plan. [T.I.W.S.] was removed and placed with a
    paternal aunt, along with his sister [A.N.S.], who was
    uncooperative and defiant.      [S.N.S.] remained with
    [M]other. [Father] remained incarcerated.
    9.      At the Permanency Review Hearing held on June
    2, 2014, the Juvenile Court again found [Mother]
    minimally compliant and [Father] had no compliance.
    Father was still incarcerated and determined not to be a
    placement option.
    10.     At a Permanency Review Hearing held on August
    13, 2014, [A.N.S.] and [T.I.W.S.] were removed from the
    home of the aunt and [S.N.S.] was removed from
    [Mother]. The Juvenile Court also made a finding that
    ____________________________________________
    1
    CYS’ involvement with the family was also based on reports of household
    issues and financial instability.
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    neither parent would be a placement option. The Juvenile
    Court seemed frustrated that despite years of providing
    various services, [Mother] had not been able to alleviate
    the circumstances which led to CYS involvement for the
    past nine years.
    11.      Subsequent Permanency Review Hearings were
    held on June 10, 2015; November 25, 2015; and April 20,
    2016, with consistent findings of minimal or no compliance
    by [Mother] and absolutely no compliance by [Father] who
    had been in and out of jail.
    12.      Dennis Kashurba, a licensed psychologist,
    evaluated [Mother] on two occasions resulting in reports
    dated July 21, 2006, and March 6, 2008. …
    *    *    *
    14.      [Mother] failed to show for a January 8, 2014
    evaluation.
    (Trial Court Order, filed July 19, 2016, at 1-5) (unpaginated). On January 6,
    2016, CYS filed a petition for involuntary termination of Mother’s and
    Father’s parental rights to Children. Following two hearings on the petition,
    the court terminated the parental rights of Mother and Father to Children on
    July 19, 2016. On August 10, 2016, Mother timely filed a notice of appeal
    and a concise statement of errors complained of on appeal pursuant to
    Pa.R.A.P. 1925(a)(2)(i).
    Mother raises the following issue for our review:
    WHETHER THE COURT EITHER ABUSED ITS DISCRETION
    OR COMMITTED AN ERROR OF LAW WHEN IT GRANTED
    THE PETITION FOR INVOLUNTARY TERMINATION OF
    PARENTAL   RIGHTS,   THEREBY   TERMINATING THE
    PARENTAL RIGHTS OF [MOTHER] TO [CHILDREN?]
    (Mother’s Brief at 2).
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    Mother argues she did not demonstrate a settled purpose of
    relinquishing her parental rights to Children.   Mother asserts she did not
    refuse or fail to perform parental duties.   Mother contends the evidence
    showed her interest in Children and her active steps to bring them back into
    her custody.   Mother claims she has long-term stable housing and has
    obtained available public assistance. Mother avers her testimony established
    her home was clean, organized, and suitable for Children. Mother maintains
    she also established her utilities were on and she was making acceptable
    payments to the service providers. Mother asserts she completed parenting
    classes and attended all scheduled visits with Children. Mother submits CYS
    relied on old records and outdated information. Mother claims she is being
    punished for her back condition, which temporarily hindered her ability to
    parent Children. Mother contends no evidence demonstrated the continued
    existence of the conditions which led to the removal of Children from her
    custody. Mother argues the trial court found, contrary to the record, that no
    bond existed between Mother and T.I.W.S. Mother avers CYS presented no
    evidence that Mother’s bonds with Children were unhealthy, or that Children
    had positive bonds with their foster parents. Mother concedes Children have
    done well in foster care but insists Children would benefit equally, if not
    more, by returning home to Mother. Mother concludes the court abused its
    discretion when it terminated her parental rights to Children. We disagree.
    The standard and scope of review applicable in termination of parental
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    rights cases are as follows:
    When reviewing an appeal from a decree terminating
    parental rights, we are limited to determining whether the
    decision of the trial court is supported by competent
    evidence. Absent an abuse of discretion, an error of law,
    or insufficient evidentiary support for the trial court’s
    decision, the decree must stand. Where a trial court has
    granted a petition to involuntarily terminate parental
    rights, this Court must accord the hearing judge’s decision
    the same deference that it would give to a jury verdict.
    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.
    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.
    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.
    We may uphold a termination decision if any proper basis
    exists for the result reached. If the trial court’s findings
    are supported by competent evidence, we must affirm the
    court’s decision, even though the record could support an
    opposite result.
    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) (internal citations omitted).
    CYS sought the involuntary termination of Mother’s parental rights 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
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    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 incapacity, abuse,
    neglect or refusal cannot or will not be
    remedied by the parent.
    *    *    *
    (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
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    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), (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
    re Z.P., 
    994 A.2d 1108
    , 1117 (Pa.Super. 2010).
    Under Section 2511(b), the court must consider whether termination
    will best serve the child’s needs and welfare.    In re C.P., 
    901 A.2d 516
    (Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
    are involved when inquiring about the needs and welfare of the child.” 
    Id. at 520
    . “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.” In re Z.P., 
    supra at 1121
    .
    “[T]he mere existence of a bond or attachment of a child to a parent will not
    necessarily result in the denial of a termination petition.” In re T.S.M., 620
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    16 Pa. 602
    , 629, 
    71 A.3d 251
    , 267 (2013). “[I]t is an immutable psychological
    truth that even the most abused of children will often harbor some positive
    emotion towards the abusive parent.” 
    Id.
     See also In re K.Z.S., 
    946 A.2d 753
     (Pa.Super. 2008) (affirming trial court’s decision to terminate mother’s
    parental rights, where trial court found placing child with mother would have
    negative impact on child and would not be in child’s best interest; no
    evidence suggested mother had bond with child comparable to child’s strong
    bond with foster parent, or that terminating mother’s parental rights would
    sever existing beneficial relationship or cause irreparable harm to child).
    “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 may properly have…her rights terminated.”           In re
    B.L.L., 
    787 A.2d 1007
    , 1013 (Pa.Super. 2001).
    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.
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    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
    child’s life.
    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
    to the best of…her ability, even in difficult 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
    convenient time to perform one’s parental responsibilities
    while others provide the child with [the child’s] physical
    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).
    “[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…her potential in a
    permanent, healthy, safe environment.” 
    Id. at 856
    .
    Instantly, the trial court reasoned as follows:
    After review of the CYS records of the Independent Family
    Services [(“IFS”)] monthly reports, participation in
    monthly case review with [IFS] and in consultation with
    the CYS caseworker, [Dr.] Kashurba concluded that:
    The total information available at the present time
    suggests quite convincingly that [Mother’s] ability to
    independently implement parenting strategies that
    have been provided to her over the past several
    years’ time has not improved to a degree that would
    suggest that she can appropriately independently
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    J-S86045-16
    parent any of her children on an ongoing basis. …
    Monthly consultation during the course of [Mother’s]
    [IFS] treatment indicate[s] that she continues to
    “parent from the couch” and that she is able to
    explain what techniques she should employ with
    [Children] but continues to not be able to implement
    these on an independent basis. … The escalating
    behavioral challenges of the older children also
    speaks for itself in that inadequate supervision and
    discipline on [Mother’s] part places these children at
    risk of harm due to their risky behaviors.
    *     *      *
    A caseworker for [IFS], which began providing services to
    [Mother], summarizes her experience with [Mother] as
    follows:
    In summary, while it appeared as though [Mother]
    was initially interested in participating in the IFS
    Home      Management       Program,    she    became
    uninterested in participating. [Mother’s] general lack
    of concern for her home and [C]hildren and her lack
    of interest to improve her cleaning skills, financial
    skills and eliminate safety issues within the home
    made the home unsafe for [Children]. IFS Home
    Management Services were terminated when
    [Children] were removed from the home on August
    13, 2014.…
    [B]everly A. Ragan, a CASA volunteer for 12 years, …in her
    June 2, 2015 report to the Juvenile Court dealing with
    [Children] and two of their siblings not involved in the
    present case, stated as follows:
    This sibling group was removed in 2006 returned
    home only to come back into the system in 2013.
    These children need stability in their lives. They
    have been on an emotional roller coaster, which has
    manifested itself with many disruptive behaviors.
    *     *      *
    The [c]ourt next considers the bond, if any, which each of
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    the parents have with [Children]. … As regards [Mother],
    there is a bond between her and each of her two older
    children, [A.N.S.] and [S.N.S.] None exists with [T.I.W.S.]
    [I]n summary, [Mother and Father] have demonstrated an
    inability to perform their parental duties and they lack the
    motivation of performing these duties within a reasonable
    period of time.
    [I]n terminating the parental rights of [Mother and
    Father], the [c]ourt finds that such termination is in the
    best interests of [Children] and that termination will best
    meet the developmental, physical, and emotional needs
    and welfare of [Children].
    *     *      *
    Each of the children deserves to have a better life.
    [S.N.S.] no longer exhibits significant behavioral issues or
    excessive school absences. [S.N.S.] is often on the Honor
    Roll at school, and she is active in multiple enrichment
    activities. [A.N.S.] no longer exhibits behavioral issues or
    excessive school absences. [A.N.S.] is now involved in a
    prestigious higher achiever program through her school
    and she is active in multiple enrichment activities.
    [T.I.W.S.] has flourished in his kinship foster home. He no
    longer exhibits significant behavioral issues and has
    developed a strong bond with his kinship foster family.
    In summary, all of these children are doing well in foster
    care.
    [Ms.] Ragan testified at the May 13, 2016 hearing
    concerning [Mother] and [Children] as follows:
    And I know this and I know [Mother’s] background
    and I know that she has got some unresolved issues
    of herself and that’s from years of working with her
    and understanding her background. But her children
    are being destroyed by her inability in not seeking
    help sooner for herself.
    (Trial Court Order at 5-9) (unpaginated). We accept the court’s analysis.
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    CYS has been involved with Mother repeatedly over the last decade.
    The IFS worker testified that Mother was unable to stabilize financially or
    maintain the household, despite the assistance she received from IFS in the
    year after Children were adjudicated dependent.      Mother exhausted every
    county social agency for financial assistance but still failed to meet monthly
    living expenses. Mother expressed an interest in working part-time due to a
    disability but failed to secure employment.       Rooms in the house were
    extremely dirty and occasionally impassable. Mother submitted photographs
    purporting to show the suitability of the home for Children, but those
    photographs were taken well after the termination petition was filed and
    were not considered by the court. See 23 Pa.C.S.A. § 2511(b). Children
    often appeared unkempt in dirty clothing and laundry would pile up in the
    house. A CYS caseworker testified that Children were out of control at times
    during visits, but Mother was unresponsive.      The court-appointed special
    advocate described the visits as chaotic. The caseworker also testified that
    Mother made no effort to initiate services after IFS was unsuccessful and
    Children were removed from her home.         Dr. Kashurba opined that Mother
    has failed to improve her ability to implement parenting strategies to a point
    where she can appropriately parent Children on an ongoing basis.          Dr.
    Kashurba stated that Mother’s inadequate supervision and discipline of
    Children places them at risk of harm.        Thus, CYS presented clear and
    convincing evidence to warrant termination of Mother’s parental rights to
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    Children under Sections 2511(a)(1), (2), (5), and (8). See In re Adoption
    of K.J., supra.
    With respect to Section 2511(b), the CYS caseworker testified that
    Children have bonds with Mother but stated A.N.S. and S.N.S. are old
    enough to recognize the stability of their current living arrangement and
    want to remain in foster care.2                The caseworker further testified that
    Children have strong bonds with their foster parents.               The caseworker
    provided extensive testimony on the improvement of Children’s behavior and
    lives since they were placed in a stable and structured foster care
    environment.       The caseworker opined that Mother is unable to provide
    stability to any of Children in a manner that would allow them to flourish as
    they have in foster care. The caseworker concluded termination of Mother’s
    parental rights was in Children’s best interest.            The trial court’s Section
    2511(b) analysis makes clear it considered the caseworker’s testimony and
    whether severing Mother’s bond with Children would destroy an existing,
    necessary and beneficial relationship.           See In re Z.P., 
    supra.
     No “magic
    words” were required. See In re K.Z.S., supra. The record supports the
    court’s conclusion that termination of Mother’s parental rights is in Children’s
    ____________________________________________
    2
    The caseworker responded “yes” to the question, “Have you noticed a bond
    between [Mother] and the children?” (N.T. Termination Hearing, 5/13/16, at
    21). During the ensuing questioning, however, the caseworker referred
    specifically to A.N.S. and S.N.S. It is unclear whether the caseworker
    intended to convey that Mother has a bond with T.I.W.S. as well.
    - 13 -
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    best interests.3       See 23 Pa.C.S.A. § 2511(b); In re C.P., 
    supra.
    Accordingly, we affirm.4
    Order affirmed.
    ____________________________________________
    3
    The court in part relied on exhibits absent from the certified record, but the
    information quoted from those exhibits mirrors the testimony of the
    caseworkers and psychologist at the termination hearings.
    4
    On October 28, 2016, Mother filed a motion to consolidate this appeal with
    the appeal she filed at 1219 WDA 2016. Mother’s stated basis for that
    appeal is the trial court’s finding of aggravated circumstances with respect to
    the dependency adjudication of one of Mother’s other children, K.S. The
    appeal at 1219 WDA 2016 is from a different order and involves a distinct
    issue, which Mother has not briefed. See Pa.R.A.P. 513 (stating this Court
    may exercise its discretion to consolidate multiple appeals where more than
    one appeal is from same order, or where same question is involved in two or
    more appeals in different cases). Therefore, we deny Mother’s motion to
    consolidate. Mother may take whatever action she deems necessary in the
    appeal at 1219 WDA 2016 in the wake of this Court’s disposition of the
    current appeal.
    Separately, Father filed a brief as a “participant” in this appeal, arguing that
    the court improperly terminated his parental rights to Children.             On
    November 7, 2016, CYS and the guardian ad litem (“GAL”) filed motions to
    “quash” Father’s brief in whole or in part. Father at no time filed a notice of
    appeal from the trial court’s order terminating his parental rights. Father
    may not simply “piggyback” on Mother’s notice of appeal. Consequently,
    this Court has no jurisdiction over his claims. See Pa.R.A.P. 903(a) (stating
    notice of appeal must be filed within thirty days after entry of order form
    which appeal is taken); Commonwealth v. Green, 
    862 A.2d 613
    (Pa.Super. 2004), appeal denied, 
    584 Pa. 692
    , 
    882 A.2d 477
     (2005) (stating
    jurisdiction is vested in Superior Court upon filing of timely notice of appeal).
    Therefore, we grant CYS’ and the GAL’s open motions and suppress Father’s
    brief in full.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/21/2016
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Document Info

Docket Number: 1260 WDA 2016

Filed Date: 12/21/2016

Precedential Status: Non-Precedential

Modified Date: 12/13/2024