In The Interest of: T.N.M.R., a Minor ( 2016 )

J-S59030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.N.M.R., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: T.R., MOTHER No. 3628 EDA 2015
Appeal from the Decree entered October 30, 2015,
in the Court of Common Pleas of Philadelphia County, Family
Court, at No(s): 51-FN-00001184-2014, CP-51-AP-0000700-2015
IN THE INTEREST OF: R.J.C.R., JR., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: T.R., MOTHER No. 3630 EDA 2015
Appeal from the Decree entered October 30, 2015,
in the Court of Common Pleas of Philadelphia County, Family
Court, at No(s): 51-FN-00001184-2014, CP-51-AP-0000701-2015
BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD*, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 04, 2016
T.R. (“Mother”) appeals from the decrees dated and entered on
October 30, 2015, granting the petitions filed by the Philadelphia County
Department of Human Services (“DHS” or the “Agency”) to involuntarily
terminate her parental rights to her dependent children, T.N.M.R., a female
born in January of 2013, and R.J.C.R., Jr., a male born in November of 2006
* Former Justice specially assigned to the Superior Court.
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(collectively, “the Children”), pursuant to the Adoption Act, 23 Pa.C.S.
§ 2511(a)(1), (2), (5), (8), and (b).1 We affirm.
The trial court set forth the relevant history of this case in its
Opinion. See Trial Court Opinion, 2/22/16, at 1-2 (unpaginated). We adopt
the trial court’s recitation for purposes of this appeal. See id.
On October 14, 2015, DHS filed petitions to terminate Mother’s
parental rights to the Children. At the hearing on October 30, 2015, DHS
presented the testimony of its caseworkers, Markey Woodard and Monica
Burton. Mother presented the testimony of her medical case manager,
Margaret Pelleriti. Mother also testified on her own behalf.
On October 30, 2015, the trial court entered the termination decrees.
On November 30, 2015, Mother timely filed notices of appeal along with
concise statements of error complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).2
In her brief on appeal, Mother raises six questions for this Court’s
review, as follows:
1
Neither A.W., the natural father of T.N.M.R., nor R.C., the natural father of
R.J.C.R., Jr., filed a brief or participated in Mother’s appeals. The trial court
had not terminated either of the father’s parental rights at the time that the
record in this case was certified.
2
The briefing schedule in this case was delayed by one and one-half months
because of an overdue record and by more than two months because of
extensions requested by Mother’s appointed counsel. Upon receipt of the
certified record and appellate briefs from both of the parties, the Superior
Court acted diligently in securing a prompt disposal of this appeal.
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A. [Whether the t]rial [c]ourt [abused] its discretion and
committed legal error in terminating [M]other’s parental rights,
since the [DHS] did not meet its burden by clear and convincing
evidence of establishing sufficient grounds that [M]other
evidenced a settled purpose of relinquishing a claim to [the
C]hildren or has refused or failed to perform parental duties
under 23 Pa.C.S.A. § 2511(a)(1)[?]
B. [Whether the t]rial [c]ourt [abused] its discretion and
committed legal error in terminating [M]other’s parental rights,
since the [DHS] did not meet its burden by clear and convincing
evidence of establishing sufficient grounds under 23 Pa.C.S.A. §
2511(a)(2) that [M]other lacks the present capacity to perform
her parental responsibilities?]
C. [Whether the t]rial [c]ourt [abused] its discretion and
committed legal error in terminating [M]other’s parental rights
under 23 Pa.C.S.A. § 2511(a)(5), because the [DHS] failed to
prove by clear and convincing evidence the present and
continued incapacity of [M]other to provide essential care
necessary for [the C]hildren’s physical and mental
well[-]being[?]
D. [Whether the t]rial [c]ourt [abused] its discretion and
committed legal error in terminating [M]other’s parental rights
under 23 Pa.C.S.A. § 2511(a)(8), because the [DHS] failed to
prove by clear and convincing evidence that the conditions which
led to both [C]hildren’s placement continue to exist[?]
E. [Whether the t]rial [c]ourt [erred] in terminating [M]other’s
parental rights since the [DHS] did not meet its burden by clear
and convincing evidence of showing that the best interest of the
[C]hildren was served by terminating [M]other’s parental rights
pursuant to section 2511(b) of the Adoption Act[?]
F. [Whether the t]rial [c]ourt abused its discretion and
committed legal error in terminating [M]other’s parental rights
under 23 Pa.C.S.A. § 2511(b), because the [DHS] did not
present competent evidence regarding the nature of the bond
between parent and children in evaluating the best interests of
the [C]hildren[?]
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Mother’s Brief at 3-4 (unpaginated; with grammatical revisions).3
In reviewing an appeal from 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. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; R.I.S., [614
Pa. 275, 284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)].
As has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett v. Kia
Motors America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d
630, 634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., 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
3
The trial court stated that, in addition to terminating Mother’s parental
rights, it changed the permanency goal for the Children to adoption under
the Juvenile Act, 42 Pa.C.S.A. § 6351. See Trial Court Opinion, 2/22/16, at
2, 6 (unpaginated). Both termination decrees provided that the adoption of
the child may continue without further notice or consent of Mother. We note
that dependency matters are with regard to the child lacking proper parental
care and control as to both parents. See In re J.C., 5 A.3d 284, 289 (Pa.
Super. 2010). In any event, Mother failed to challenge the goal change,
and, thus, waived any challenge to that determination. See Krebs v.
United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both his or her concise statement of errors complained of on appeal and the
Statement of Questions Involved in his or her brief on appeal).
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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. R.J.T., [608 Pa. at
28-30], 9 A.3d at 1190. 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
Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (Pa.
2012).
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).
Moreover, 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)).
The trial court terminated Mother’s parental rights under section
2511(a)(1), (2), (5), (8), and (b). See Trial Court Opinion, at 2/22/16, at 2
(unpaginated). This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
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banc). We will focus on section 2511(a)(1) and (b), which provide as
follows:
§ 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, 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.
In In re Z.S.W., 946 A.2d 726 (Pa. Super. 2008), this Court stated:
[t]o satisfy the requirements of section 2511(a)(1), 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 R.J.S., 901 A.3d 502, 510
(Pa. Super. 2006). In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
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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.
In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa.
1998).
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).
Id. at 92 (citation omitted).
In re Z.S.W., 946 A.2d at 730 (parallel citations omitted).
The trial court found the following based upon the testimony of Ms.
Woodard and Ms. Burton.
In the instant case, Mother did not fully complete her Family
Service Plan (FSP) goals. Ms. Woodard, the original DHS social
worker, identified the mother’s FSP objectives as: 1) attend
parenting and anger management classes, 2) maintain visits
with the [C]hildren, 3) obtain suitable housing, 4) attend the
[C]hildren’s medical appointments, and 5) complete mental
health treatment. (N.T., 10-30-15, p. 15). Ms. Burton, the
current DHS social worker[,] was never able to confirm whether
or not Mother [] obtained appropriate housing because Mother
never allowed her access to her home. (N.T., 10-30-15, pgs. 37
and 46). The social workers testified that because Mother
denied them access, they were unable to ascertain whether her
paramour was living in the home. Mother’s paramour was not
permitted to be in the home with the [C]hildren because he was
a sexual offender. (N.T., 10-30-15, pgs. 22-23 and 38).
Furthermore, Mother did not attend the [C]hildren’s medical
appointments. (N.T., 10-30-15, pg. 41). Moreover, Mother did
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not complete her mental health treatment. (N.T., 10-31-15, pg.
49). Mother NEVER provided DHS with documentation that she
was attending treatment for mental health. (N.T., 10-30-15,
pgs. 49 and 57).
Trial Court Opinion, 2/22/16, at 3 (unpaginated) (emphasis in original).
On direct examination, Mother testified that she completed a 16-week
parenting class at Achieving Reunification Center (“ARC”) on October 22,
2015, and began the class in July of 2015. N.T., 10/30/15, at 68-69.
Mother testified that no DHS employee came to evaluate the home where
she had been living since November of 2014. Id. at 69-70. Further, Mother
testified that she was receiving mental health treatment at COMHAR, and
met weekly with a psychotherapist for mental health treatment. Id. at 71.4
Mother stated that she left voicemail messages with DHS caseworker Monica
Burton on ten occasions to inform DHS about her parenting classes and
anger management classes, and her mental health treatment at COMHAR.
Id. at 73. Mother also stated that she receives psychiatric treatment once
monthly, and receives medication for depression and bipolar conditions. Id.
at 74-75. Mother explained that her failure to visit the Children was because
she had heart failure and could not walk far prior to surgery, but that she
was currently under treatment for the heart condition. Id. at 76-77.
Finally, Mother stated that R.J.C.R., Jr., would like to return home with her
4
The notes of testimony erroneously refer to this agency as COHMAR. See
N.T., 10/30/15, at 71.
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when he sees her at visits, but T.N.M.R. is too young to understand
returning home with Mother. Id. at 77.
On cross-examination by the child advocate, Mother testified that her
health, specifically her heart condition, prevented her from addressing the
matters necessary for reunification with the Children. N.T., 10/30/15, at 79-
80. She blamed DHS for failing to inform her that she needed to bring
documentation to the hearing to support her claim that she could not attend
the visits because of her health. Id. Mother brought documentation to the
hearing indicating that she began treatment with a psychiatrist at COMHAR
on September 8, 2015. Id. at 80. While Mother stated that she saw
another psychiatrist prior to September of 2015, she failed to bring to the
hearing any documentation that would prove her claim. Id. at 81.
Additionally, Mother blamed the failure of DHS to evaluate her home on the
failure of the DHS caseworker to respond to Mother’s voicemails. Id. at 83-
85.
At the conclusion of the hearing, the trial court stated as follows:
[THE COURT]: Even though [Mother] completed some of her
Family Service Plan objectives within the last six months, for the
balance of the case[,] [Mother] failed to visit[,] in the beginning
of the case. The housing issue has always been an issue[,] and
it’s still an issue. The mental health, [Mother’s] own document
which she submitted[,] which I accepted[,] indicates that she
started mental health [treatment] a month ago. She testified
that she started it six months ago. I don’t find that to be
credible. Her own document says a month ago. So mental
health continues to be an issue.
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I cannot – we need permanency for these children. The
timeline doesn’t stop. So theoretically for [Mother] to
successfully complete it we’d have to wait another four to five
months for her to complete her mental health. So based upon
the totality of the circumstances –
[MOTHER]: But, Judge, I did it.
[THE COURT]: That is why [--] that is my rationale for the
decision. I do find that Ms. Woodard and Ms. Burton testified
credibly.
N.T., 10/30/15, at 93.
With regard to section 2511(a)(1), the trial court found the following
from the testimony at the hearing.
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, [M]other failed to perform parental duties for the
[C]hildren. The court found by clear and convincing evidence
that [M]other refused or failed to perform her parental duties.
***
In the instant matter, the [C]hildren, T.N.M.R. and R.J.C.R.,
have been in placement care for approximately seventeen
months. Mother was inconsistent with her visitation with the
[C]hildren. (N.T., 10-30-15, p. 19). Furthermore, Mother had
supervised visitation with the [C]hildren and she never
progressed to unsupervised visitation. (N.T., 10-30-15, pgs. 18
and 49). Moreover, the DHS social worker testified that Mother
has no involvement with R.J.C.R.’s autism services, mental
health therapy or school. (N.T., 10-30-15, p. 41). The
testimony established that the [C]hildren are in a safe
environment[,] and termination of the mother’s parental rights is
in the best interest of the child. (N.T., 10-30-15, pgs. [25-26]
and 40).
Trial Court Opinion, 2/22/16, at 3-4 (unpaginated).
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The trial court carefully reviewed the testimony and the evidence
presented by the parties, and found that Mother failed to perform her
parental duties for the six months prior to the filing of the termination
petition. The trial court rejected, as lacking credibility, Mother’s reasons for
her abandonment of the Children and her explanation for her lack of contact
with the Children, specifically, her medical and mental health issues, her
treatment for those conditions, and the fact that she was living in a separate
household from the Children. See Mother’s Brief, at 10 (unpaginated); Trial
Court Opinion, 2/22/16, at 6 (unpaginated).
We find that competent evidence of record supports the trial court
order concluding that, for a period of at least six months prior to the filing of
the petition, Mother engaged in conduct evidencing a settled purpose of
relinquishing her parental rights to the Children under section 2511(a)(1).
The trial court did not commit an abuse of discretion or an error of law. See
In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27.
Next, this Court has explained that the focus in terminating parental
rights under section 2511(a) is on the parent, but, under section 2511(b),
the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008
(Pa. Super. 2008) (en banc). Pursuant to section 2511(b), we must
consider whether the termination of parental rights would best serve the
developmental, physical, and emotional needs and welfare of the child. See
In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005). “Intangibles
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such as love, comfort, security, and stability are involved in the inquiry into
the needs and welfare of the child.” Id. at 1287 (citation omitted). The trial
court must also discern the nature and status of the parent-child bond in the
case, with utmost attention to the effect of permanently severing that bond
on the child. See id.
When evaluating a parental bond, “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., 994 A.2d at 1121 (internal citations omitted).
Although it is often wise to have a bonding evaluation and make it part of
the certified record, “[t]here are some instances . . . where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946
A.2d 753, 762 (Pa. Super. 2008).
Based upon evidence within the certified record, the trial court found
that there is no bond between Mother and the Children, as the Children had
no difficulty separating from Mother at the end of visits, and there was no
irreparable harm to the Children when Mother missed visits. Trial Court
Opinion, 2/22/16, at 5 (unpaginated) (citing N.T., 10/30/15, at 20, 51).
See also Trial Court Opinion, 2/22/16, at 5 (unpaginated). The trial court
stated:
Furthermore, the [C]hildren look to the foster parents for love[,]
safety, stability and support. The testimony of the social worker
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indicated that [“]They have a strong bond with each other.”
(N.T. 10-30-15, p. 25-26). The current social worker testified
that the [C]hildren receive the love and care they need from the
foster parents, “you can tell they are bonded with them.” They
have a parent-child relationship. (N.T., 10-30-15, pgs. 40-41).
The social workers testified that termination of [M]other’s
parental rights would be in the best interest of the [C]hildren
and that termination would cause no significant or irreparable
harm to the [C]hildren. (N.T., 10-30-15, pgs. 25 and 40).
The t]rial [c]ourt found by clear and convincing evidence that the
Department of Human Services met [its] statutory burden
pursuant to 23 Pa.C.S.A. §§ 2511(a) & (b) and that it was in the
best interest of the [C]hildren to change the goal to adoption.
(N.T., 10-30-15, pgs. 91-92).
Lastly, in the instant matter, the [trial court] found that DHS
social workers testified credibly.
***
Furthermore, the [trial] court finds that its ruling will not cause
R.J.C.R. and T.N.M.R. to suffer irreparable harm and it is in the
best interest of the [C]hildren as [a] result of testimony
regarding the [C]hildren’s safety, protection, mental, physical
and moral welfare to terminate [M]other’s parental rights.
Trial Court Opinion, 2/22/16, at 5-6.
As we stated in In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), a child’s
life “simply cannot be put on hold in the hope that [a parent] will summon
the ability to handle the responsibilities of parenting.” Id. at 1125. We
emphasized, “[p]arental rights are not preserved by waiting for a more
convenient time to perform one’s parental responsibilities while others
provide the child with [the] child’s physical and emotional needs.” Id. at
1119 (quoting In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004)
(emphasis in original)). Rather, “a parent’s basic constitutional right to the
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custody and rearing of his child is converted, upon the failure to fulfill his or
her parental duties, to the child’s right to have proper parenting and
fulfillment of his or her potential in a permanent, healthy, safe
environment.” In re B., N.M., 856 A.2d at 856. See In re: T.S.M., 620
Pa. 602, 628-629, 71 A.3d 251, 267 (Pa. 2013).
Again, we find that the competent, clear and convincing evidence in
the record supports the trial court’s conclusion that the termination of
Mother’s parental rights would best serve the Children’s needs and welfare,
and would provide the Children with the permanency and stability that they
need in their life. The court’s conclusion is not the result of an error of law
or an abuse of discretion. Accordingly, we affirm the trial court’s decision
with regard to subsection (b). In re Adoption of S.P., 616 Pa. at 325-26,
47 A.3d at 826-27.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2016
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