In Re: Adopt. of M.J.A., Appeal of: T.J. ( 2015 )

J-S10044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF M.J.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: T.J., BIOLOGICAL MOTHER : No. 2938 EDA 2014
Appeal from the Order September 12, 2014
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2014-A0036
IN RE: ADOPTION OF L.A.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: T.J., BIOLOGICAL MOTHER : No. 2939 EDA 2014
Appeal from the Order September 12, 2014
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2014-A0037
BEFORE: GANTMAN, P.J., STABILE, J., AND PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 11, 2015
Appellant, T.J. (“Mother”), appeals from the orders entered in the
Montgomery County Court of Common Pleas Orphans’ Court, which granted
the petition of Appellees, D.J. and T.J.J. for involuntary termination of
Mother’s parental rights as to her minor children, M.J.A. and L.A.A.
(“Children”).1 We affirm.
1
Children’s birth father is not a party to this appeal. He voluntarily
relinquished his parental rights to Children at the termination hearing on
September 11, 2014.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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The relevant facts of this case are as follows. Children were born in
2008 and 2009. Since June 2010, they have lived exclusively with
Appellees, Mother’s uncle and aunt, under an agreement with Mother giving
them sole legal and physical custody of Children. Mother has a history of
hard drug abuse, primarily heroin, since the age of twelve. Mother has been
incarcerated repeatedly in 2010, 2011, 2013, and 2014. For the last two
and one-half years, Mother spent a total of eight hours of supervised
visitation with Children. Mother provided no housing or financial support for
Children during this entire time.
Procedurally, on March 17, 2014, Appellees filed petitions for
involuntary termination of Mother and birth father’s parental rights, based
on 23 Pa.C.S.A. 2511(a)(1)-(2) and (b). On September 11, 2014, the court
held a termination hearing. Following the hearing, on September 12, 2014,
the court granted the petitions and terminated Mother’s parental rights per
Sections 2511(a)(1)-(2) and (b). 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(ii).
Mother raises the following issues for our review:
DID THE TRIAL COURT COMMIT ERROR IN TERMINATING
THE PARENTAL RIGHTS OF MOTHER, PURSUANT TO 23
PA.C.S.A. [§] 2511(A)(1), WHERE THE TESTIMONY AT
TRIAL DEMONSTRATED THAT MOTHER HAD MADE
COURAGEOUS EFFORTS TO IMPROVE HERSELF AS A
PERSON AND A PARENT AND AT NO POINT EVIDENCED A
SETTLED PURPOSE OF RELINQUISHING HER PARENTAL
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CLAIM OR FAILED OR REFUSED TO PERFORM PARENTAL
DUTIES?
DID THE TRIAL COURT COMMIT ERROR IN TERMINATING
THE PARENTAL RIGHTS OF MOTHER, PURSUANT TO 23
PA.C.S.A. [§] 2511(A)(2), WHERE THE TESTIMONY AT
TRIAL DEMONSTRATED THAT MOTHER HAD MADE
COURAGEOUS EFFORTS TO IMPROVE HERSELF AS A
PERSON AND A PARENT AND THAT THE CAUSES OF ANY
INCAPACITY ON THE PART OF MOTHER HAD BEEN, OR
WERE IN THE PROCESS OF [BEING], REMEDIED?
DID THE TRIAL COURT [ERR] BY INVOLUNTARILY
TERMINATING MOTHER’S PARENTAL RIGHTS WHERE THE
FACTS DID NOT ESTABLISH BY CLEAR AND CONVINCING
EVIDENCE THAT SUCH TERMINATION WAS IN THE BEST
INTERESTS OF THE CHILDREN AS CONTEMPLATED BY 23
PA.C.S.A. [§] 2511(B).
(Mother’s Brief at 2).
Appellate review in 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
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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 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)).
Section 2512 governs who may bring a petition to terminate parental
rights, and what the petition must contain, as follows:
§ 2512. Petition for involuntary termination
(a) Who may file.─A petition to terminate parental
rights with respect to a child under the age of 18 years
may be filed by any of the following:
(1) Either parent when termination is sought with
respect to the other parent.
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(2) An agency.
(3) The individual having custody or standing in loco
parentis to the child and who has filed a report of
intention to adopt required by section 2531 (relating to
report of intention to adopt).
(4) An attorney representing a child or a guardian ad
litem representing a child who has been adjudicated
dependent under 42 Pa.C.S.A § 6341(c) (relating to
adjudication).
(b) Contents.─The petition shall set forth specifically
those grounds and facts alleged as the basis for
terminating parental rights. The petition filed under this
section shall also contain an averment that the petitioner
will assume custody of the child until such time as the child
is adopted. If the petitioner is an agency it shall not be
required to aver that an adoption is presently
contemplated nor that a person with a present intention to
adopt exists.
* * *
23 Pa.C.S.A. § 2512. If the petitioner is not an agency, then the petition
must include “an averment that an adoption is presently contemplated or
that a person with a present intention to adopt exists.” In re Adoption of
J.F.D., 782 A.2d 564, 567 (Pa.Super. 2001). In any event, the burden of
proof remains with the petitioning party, who must establish valid grounds
for termination by clear and convincing evidence. In re J.L.C., 837 A.2d
1247, 1251 (Pa.Super. 2003).
Appellees sought termination of Mother’s parental rights on the
following grounds:
§ 2511. Grounds for involuntary termination
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(a) General Rule.―The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to
be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied
by the parent.
* * *
(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), (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., supra
at 1117.
Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and
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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).
Under Section 2511(b), the court must consider whether the child’s
needs and welfare will be met by termination. 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. The court must also discern the nature and
status of the parent-child bond, paying close attention to
the effect on the child of permanently severing the bond.
Id. at 520 (internal citation omitted). “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.
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 parental rights terminated. In re B.L.L., 787
A.2d 1007 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental
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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.
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 his…potential in a
permanent, healthy, safe environment.” Id. at 856.
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Regarding Mother’s complaints on appeal, the Orphans’ court reasoned
as follows:
Frankly, as I listen to this evidence, I really don’t conclude
that there were any obstacles placed in mother’s path. I
know she says she didn’t feel welcome. I know she says
that she wasn’t encouraged. There’s a difference between
not feeling encouraged and having obstacles placed in your
path. So I really don’t think that that aspect of the law
matters.
* * *
I don’t have any difficulty concluding that you have failed
to perform parental duties as required by children of the
ages of yours between the time of 2010 -- really from the
time they were born up until the present. And these
children are of tender years even now. I wrote down the
exact, and I think it was 6.8 and 5.7 in months or
something like that. That period of time up through age
six is such a critical, critical, critical time. They are
soaking everything up like a sponge, and they need so
much help and guidance and direction, and all that stuff.
The truth of the matter is you haven’t really provided them
anything. You may have wanted to, but between your
drug addiction and everything else that’s impacting you,
you just didn’t do it. So you did fail to do it, and there’s
certainly no other way to conclude that looking at the facts
here.
* * *
Now, what ought to be done under the circumstances
(when you’re a parent with a child of the ages your
children are) is what is in their best interest. The lifestyle
that you chose for yourself in those years was not in your
children’s best interest. The drugs took over your life, and
it grossly affected your judgment, and it affected your
ability to be a parent. That’s what we mean by incapacity,
and it’s a continuing one. And then it says at the very
end, “and will not be remedied.” Now, it doesn’t mean
forever, but it does mean within a reasonable time.
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What’s a reasonable time? Reasonable is always
determined by the circumstances and frequently by the
ages of the children. So, again, I’m dealing with children
who are five and six, closer to six and seven, and time is
running out for them to receive the parental care that they
need. …
* * *
What does that incapacity consist of? By your admission,
you’ve been abusing drugs since the age of 12. That
would be 15 years. By your admission, six convictions,
two inpatient programs, three outpatient programs, an AA
program, an NA program that you didn’t like or you didn’t
feel was doing you any good, and a drug court, which I am
very familiar with because I've gone and watched those
graduations. And I know that the very few people who get
selected to go in it, who are very fortunate to be selected
to go in it, get what’s a very intensive supervision from
their probation officers. You know it, too. You had much,
much more strict and intense supervision than the normal
person on probation and parole all designed because, hey,
we think we can save this person. If we can get them
through to graduation, we can turn their life around. …
I think of all these things, all these efforts that have been
made on your behalf. I think about the schooling that you
were offered, good private schooling….
* * *
But I don’t think that with what you have done in the first
six and five years of your children’s lives allows you to say
somewhere, maybe in a couple years, I can be a mom,
because here’s what the law says about that: [i]f you meet
the definitions in these sections, then the law says: [n]ow
we look to what the best interests of the children are
because we can’t make them wait indefinitely. Their lives
are being formed, being shaped. They are going to be
adults. They are affected by that. They need an
upbringing. The law says that if you do the things as we
define them here and the Court determines that it’s been
proven by clear and convincing evidence, then, then your
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constitutional right no longer prevails, and now we’re going
to look at what is best for those kids.
So I make that shift at this point, what’s best for
[Children]. So I look at everything I heard about
[Appellees], and I credit your honesty on this, you
acknowledge they’ve done a great job. Even if you hadn’t,
I know they’ve done a great job. That’s a no-brainer.
They didn’t do it because they’re making money out of this
or because anybody is giving them an award somewhere,
but whatever they do is because they obviously love
parenting, and they obviously love your children, and…they
do.
* * *
So those are all my rationale, my findings of fact, my
conclusions of law. I think grounds have been made out
under [2511](a)(1) and (a)(2). I think it’s both an
incapacity and neglect under Section (a)(2). I think it’s a
failure to perform parental duties under (a)(1)….
* * *
This matter will be listed for an adoption hearing−a final
adoption hearing in the regular course after the appellate
periods have run.
(N.T. Termination Hearing, 9/11/14, at 219-27). We accept the Orphans’
court’s reasoning. The record makes clear Mother has an entrenched drug
problem that led her over many years to make poor choices in life, including
multiple incarcerations, most recently in 2014. Mother willingly gave legal
and physical custody of Children at a very early age to Appellees, who have
served as Children’s parents for over four years, meeting all parental
obligations. Mother consistently failed to assume her parental duties such
that Children believe Appellees are their real parents. The record contains
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no evidence that severing any bond that might exist between Children and
Mother would cause the Children adverse effects. The record supports the
Orphans’ court’s decision to terminate Mother’s parental rights. Accordingly,
we affirm.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2015
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