In the Int. of: G.M., Appea of: P.M. ( 2023 )

J-S31001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: G.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: P.M., MOTHER :
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:
: No. 1342 EDA 2023
Appeal from the Order Entered May 1, 2023
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001196-2020
IN THE INTEREST OF: G.A.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: P.M., MOTHER :
:
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:
: No. 1343 EDA 2023
Appeal from the Decree Entered May 1, 2023
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000033-2023
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 3, 2023
Appellant, P.M. (“Mother”), appeals from the decree and order entered
on May 1, 2023, granting a petition filed by the Philadelphia Department of
Human Services (“DHS”) to involuntarily terminate Mother’s right to her son,
G.M., a/k/a G.A.M. (“Child”) pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (a)(2),
(a)(5), (a)(8), and (b) and changing the goal of reunification to adoption. We
affirm.
J-S31001-23
We briefly summarize the facts and procedural history of this case as
follows. In June 2020, DHS received a report that Mother, who was residing
in a long-term residential drug and alcohol rehabilitation and mental health
facility with Child who was 7 months old at the time, was under the influence
of an unknown substance. In November 2020, DHS filed a dependency
petition alleging that Mother was non-compliant with drug and mental health
treatment and continued to abuse narcotics. On April 5, 2021, Child was
adjudicated dependent, committed to DHS custody, and objectives for
reunification were established. Initially, Child was placed with maternal
grandmother, but he was moved into general foster care at the end of 2021.
In May 2022, maternal relatives who were already foster parents, as well as
parents to an adopted child, agreed to take Child. Child has lived there since
that time. On January 31, 2023, DHS filed petitions to involuntarily terminate
Mother’s parental rights and change Child’s permanency goal from
reunification to adoption. An evidentiary hearing was held on March 31, 2023.
Mother was present; however, the case was continued until May 1, 2023. On
May 1, 2023, the trial court held the scheduled hearing. Mother was not
present for the hearing but was represented by counsel. DHS presented
testimony from Child’s case manager with the Community Umbrella Agency
(“CUA”), Gaelle Beck.
At the conclusion of the hearing, the trial court determined:
The testimony reflects that [Child] has been in care since October
of 2020. Single case plan objectives were established for
reunification. They included [Achieving Reunification Center
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(“ARC”) programs for] parenting, housing, and employment as
well as substance abuse [and mental health] treatment [and]
attending [Child’s] medical appointments[.]
[T]he testimony does reflect that [M]other has engaged in drug
treatment programs and has [participated in visitation with Child],
thus there’s been some compliance. There has not been enough
for reunification[, however].
[Mother has] engaged in approximately seven [treatment]
programs and did not complete [any] with the exception of
February of 2023 [when] she was successfully discharged from
Kirkbride [Center, a behavioral health care facility in Philadelphia]
for the third time. The record reflects that she’s in yet another
program now.
There was no initial record of [Mother] visiting [Child] prior to
treatment and the visitation that she’s had – six to eight visits –
has been inconsistent since [Child] was placed. Visits have not
progressed beyond supervised.
Her compliance with single case plan objectives have been
minimal as well as her progress has been minimal.
The testimony reflects that [Child] sees [Mother] as, according to
the CUA case manager, a random person to hang out with.
There’s no mother/son bond. He never asks about her.
[The trial court finds Child] will suffer no irreparable harm if
parental rights are terminated.
[Child’s] been with his current foster family since May of 2022.
He’s bonded with his current foster parents who he refers to as
mom and dad. The testimony reflects that he has a strong bond
with them, and they attend to all of his needs.
The circumstances that led to placement will not be alleviated in
a reasonable amount of time.
* * *
[C]hild deserves permanency and it’s in his best interest for the
goal to be changed to adoption and parental rights terminated.
N.T., 5/1/2023, at 31-33.
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Accordingly, the trial court entered a decree on May 1, 2023, finding
clear and convincing evidence that supported grounds for the involuntary
termination of Mother’s parental rights pursuant to 23 Pa.C.S.A.
§§ 2511(a)(1), (a)(2), (a)(5), (a)(8). The trial court further found that there
was no bond between Child and Mother, there would be no irreparable harm
to severing their relationship, and that it was in Child’s best interest to
terminate Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(b). In a
separate order entered the same day, the trial court also changed Child’s
permanency goal from reunification to adoption.1 These timely appeals
resulted.2
On appeal, Appellant presents the following issues for our review:
A. Whether the trial [c]ourt erred by changing [] Child’s goal to
adoption and terminating parental rights of [] Mother[?]
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1 The trial court also entered decrees terminating the parental rights of A.S.
(“Father”), as well as any unknown father (“Unknown Father”). Neither Father
nor Unknown Father has appealed those determinations, and neither is a party
to the current action.
2 On May 30, 2023, Mother filed separate notices of appeal and a
corresponding concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(ii). On June 8, 2023, the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a). In that opinion, the trial court relied entirely
upon the transcript from the evidentiary hearing, citing specific evidence
presented, for its reasons to terminate Mother’s parental rights and to change
the goal from reunification to adoption. The trial court further stated that
“[t]o the extent that the Pennsylvania Superior Court believes that the trial
court’s statements on the record do not adequately address any issues on
appeal, the trial court will submit a supplemental opinion upon remand.” Trial
Court Opinion, 6/8/2023, at *1-2 (unpaginated). Finally, we note that by
order entered on June 22, 2023, this Court consolidated the appeal from the
termination of parental rights with the appeal from the goal change.
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B. Whether the trial court erred in terminating [Mother’s] parental
rights, the evidence having [b]een insufficient to establish
M[other] caused [C]hild to be without essential parental care,
nor could that not have been remedied[?]
C. Whether the trial court erred in terminating [Mother’s] parental
rights, when M[other] felt that she was going to have sufficient
time to complete her objectives[?]
D. Whether the trial [c]ourt erred by finding that termination of
[Mother’s] rights best serves [] Child’s developmental, physical
and emotional needs and welfare[?]
E. Whether the trial court erred in terminating [Mother’s] parental
rights, when M[other] wanted the opportunity to complete her
objectives, and then effectively defend the [involuntary]
termination of her parental rights[?]
F. Whether the errors committed by the [trial] court [] deprived
[Mother] of her rights to due [p]rocess and equal protection
under the law[?]
Mother’s Brief at 3-4 (suggested answers omitted).3
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3 Mother also states that she “respectfully request[s] to submit additional
issues or errors in support of the within appeal [] after review of the transcript
is competed.” Mother’s Brief at 4. However, Mother never sets forth
additional issues. Moreover, we note that although Mother presents six issues
in her statement of questions involved, as set forth above, she argues all of
her issues in a single argument. See Pa.R.A.P. 2119(a) (requiring an
appellant to divide the argument section into separate sections for each issue
set forth in the statement of questions presented, with distinctive headings
for each such section). While we could deem Mother’s issues waived, we will
overlook the defect, but caution counsel to follow our rules of appellate
procedure in the future. See Commonwealth v. Levy, 83 A.3d 457, 461 n.2
(Pa. Super. 2013) (declining to find waiver where omissions did not impede
review) citing Pa.R.A.P. 105(a) (providing that appellate rules shall be liberally
construed to secure the just, speedy and inexpensive determination of every
matter).
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From our review of Mother’s brief, her appellate issues can be fairly
separated into three distinct claims. First, Mother challenges the sufficiency
of the evidence to support involuntary termination of her parental rights under
Section 2511(a). Next, Mother argues that the trial court erred by severing
the bond between her and Child under Section 2511(b). Finally, Mother
argues that she was denied due process of law by the trial court’s reliance
upon pronouncements made at the evidentiary hearing and its failure to file a
substantive Rule 1925(a) opinion because she “shouldn’t have to guess the
reasoning for the trial court’s ruling.” Mother’s Brief at 13. We will examine
each of these three contentions in turn. Finally, we note that although Mother
references the goal change from reunification to adoption in her statement of
questions in her appellate brief, she presents no legal argument or discussion
regarding goal changes, and we find that aspect of her claim waived.4
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4 As we previously determined:
[I]t is an appellant's duty to present arguments that are
sufficiently developed for our review. The brief must support the
claims with pertinent discussion, with references to the record and
with citations to legal authorities. Citations to authorities must
articulate the principles for which they are cited.
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived.
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (internal
citations omitted).
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Regarding her first claim pertaining to Section 2511(a), Mother posits,
in sum:
The court erred in terminating Mother’s parenting rights and
determining that said termination would best serve the needs and
welfare of [C]hild, when [] Mother was visiting [C]hild, was
seeking housing for herself and [C]hild, attended parenting class,
was working towards completing her family service plan
objectives, completed a drug and alcohol and mental health
programs and then actively participated and had housing at the
Jefferson program, and did not intend to relinquish her claim to
[C]hild or did not intend to refuse and/or fail to perform parental
duties and, [] when Mother wanted [an] opportunity to complete
her objectives, and then effectively defend the involuntary
termination of her parental rights and when Mother felt she was
going to have sufficient time to complete [her] objectives from the
time she completed her drug and mental health programs.
Mother’s Brief at 6.
We review involuntary termination orders for an abuse of discretion,
which requires an error of law or a showing of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. See In re Adoption of L.A.K., 265 A.3d
580, 591 (Pa. 2021) (citation omitted). In applying this standard, appellate
courts must accept the trial court’s findings of fact and credibility
determinations if they are supported by the record. Interest of S.K.L.R.,
256 A.3d 1108, 1123 (Pa. 2021); see also In re Adoption of C.M., 255 A.3d
343, 358 (Pa. 2021). “The trial court, not the appellate court, is charged with
the responsibilities of evaluating credibility of the witnesses and resolving any
conflicts in the testimony.” In re Adoption of R.J.S., 901 A.2d 502, 506 (Pa.
Super. 2006) (citations omitted). “In carrying out these responsibilities, the
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trial court is free to believe all, part, or none of the evidence.” Id. (citation
omitted).
Pennsylvania’s Adoption Act governs involuntary termination of parental
rights proceedings. See 23 Pa.C.S.A. §§ 2101-2938. Section 2511(a)
provides grounds for involuntary termination of parental rights. If the trial
court finds clear and convincing evidence supporting the existence of one of
the grounds for termination set forth in subsection (a), the court must then
consider whether termination would best serve the child under subsection (b).
See In re Adoption of R.J.S., 901 A.2d at 509.
Here, the trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. §§ 2511(a)(1), (a)(2), (a)(5), and (a)(8), which provides, in
pertinent part:
(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.
***
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency
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for a period of at least six months, the conditions which led
to the removal or placement of the child continue to exist,
the parent cannot or will not remedy those conditions within
a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the parental rights would best serve the needs and welfare
of the child.
***
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
23 Pa.C.S.A. §§ 2511(a)(1), (a)(2), (a)(5), and (a)(8). Furthermore, in this
case, although the trial court found DHS met its burden of proof under each
subsection referenced above, “we need only agree with its decision as to any
one subsection in order to affirm the termination of parental rights.” In re
Adoption of J.N.M., 177 A.3d 937, 943 (Pa. 2018) (citation omitted).
We will examine Section 2511(a)(5). “To satisfy the requirements of
Section 2511(a)(5), the moving party must produce clear and convincing
evidence regarding the following elements: (1) the child has been removed
from parental care for at least six months; (2) the conditions which led to the
child's removal or placement continue to exist; (3) the parent(s) cannot or will
not remedy the conditions which led to removal or placement within a
reasonable period time; (4) the services reasonably available to the parent(s)
are unlikely to remedy the conditions which led to removal or placement within
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a reasonable period of time; and (5) termination of parental rights would best
serve the needs and welfare of the child.” In re B.C., 36 A.3d 601, 607 (Pa.
Super. 2012)(citation omitted). “The statute permitting the termination of
parental rights outlines certain irreducible minimum requirements of care that
parents must provide for their children, and a parent who cannot or will not
meet the requirements within a reasonable time following intervention by the
state may properly be considered unfit and have his parental rights
terminated.” In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010) (internal
citations and quotations omitted).
Moreover, this Court has stated:
The [trial] 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.
The [Pennsylvania] Supreme Court has defined parental duty as
follows:
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, [our Supreme C]ourt 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 [her]self 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 his or 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 his or her physical and emotional
needs.
In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal citations and
quotations omitted).
Here, there is no dispute that Child was removed from Mother’s care for
over three years. See Mother’s Brief at 11 (Mother concedes that the
one-year time limit set forth under Section 2511(a)(5) was “exceeded.”). The
trial court found that the conditions that led to Child’s placement, namely
Mother’s substance abuse, continued to exist. The record supports that
decision. CUA case manager, Gaelle Beck, testified that Mother had been
engaged in seven different drug and alcohol treatment programs, over the
course of the three years Child was removed from her care, but she was
discharged from all of them without completion. See N.T., 5/1/2023, at 10.
Mother finally completed treatment at Kirkbride Center on February 2, 2023,
after the termination petition was filed. Id. At the time of the hearing,
however, Mother had been admitted to and was attending another treatment
program called “Fresh Start” at the “Family Center.” Id. at 24. Additionally,
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we note that Mother failed to attend Child’s medical appointments, did not
maintain contact with CUA throughout the life of the case as required, and
refused parenting, housing, and employment programs through ARC. Id. at
7. Mother also did not participate in random drug screening as mandated.
Id. at 8. Mother visited Child inconsistently both in person and virtually. Id.
at 12. Mother only began visiting Child in person after she was released from
Kirkbride Center in February 2023. Id. She only saw Child a total of six times
since Child was removed from her care and those visits were always
supervised. Id. at 12-13. The record shows that services were available to
Mother, but she cannot or will not remedy the conditions which led to Child’s
removal within a reasonable period time. Moreover, while Mother believes
she can comply given more time, her parental rights are not preserved by
waiting for a more suitable or convenient time to perform her parental
responsibilities while others provide Child with his physical and emotional
needs. Finally, there was testimony that it was in Child’s best interest to
terminate Mother’s rights. Id. at 14-15 and 19. Accordingly, we discern no
abuse of discretion or error of law in terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(5).
Next, Mother asserts that the trial court erred by involuntarily
terminating her parental rights pursuant to 23 Pa.C.S.A. § 2511(b). Mother’s
Brief at 11. On this issue, Mother argues, in sum:
The circumstances of all dependency cases and the separation of
parents from children disrupt [] the bond between parents and
their children. Weekly visits, supervised visits, virtual visits, with
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all the classes and therapy and seeking or maintaining housing
and seeking or maintaining employment on top of limited visits
make maintain[ing] a bond difficult. In this case Mother and
[C]hild haven’t been given the opportunity to properly bond with
increased periods of visitation and more unsupervised visits, then
overnight visits.
Id. at 12 (parentheticals omitted).
Section 2511(b) provides, in pertinent part:
(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.
23 Pa.C.S.A. § 2511(b). “Above all else ... adequate consideration must be
given to the needs and welfare of the child. A parent's own feelings of love
and affection for a child, alone, do not prevent termination of parental rights.”
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010).
We previously explained,
Our Supreme Court has made clear that § 2511(b) requires the
trial court to consider the nature and status of bond between a
parent and child. To the extent there is a bond, the trial court
must examine whether termination of parental rights will destroy
a necessary and beneficial relationship, thereby causing a child to
suffer extreme emotional consequences. While a parent's
emotional bond with his or her child is a major aspect of the
§ 2511(b) best-interest analysis, it is nonetheless only one of
many factors to be considered by the court when determining
what is in the best interest of the child. In addition to a bond
examination, the trial court can equally emphasize the safety
needs of the child, and should also consider the intangibles, such
as the love, comfort, security, and stability the child might have
with the foster parent. In determining needs and welfare, the
court may properly consider the effect of the parent's conduct
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upon the child and consider whether a parent is capable of
providing for a child's safety and security or whether such needs
can be better met by terminating a parent's parental rights.
Furthermore, our Supreme Court has stated [that] common sense
dictates that courts considering termination must also consider
whether the children are in a pre-adoptive home and whether they
have a bond with their foster parents.
[Our Supreme] Court [has] directed that, in weighing the bond
considerations pursuant to § 2511(b), courts must keep the
ticking clock of childhood ever in mind [because] children are
young for a scant number of years, and we have an obligation to
see to their healthy development quickly. When courts fail[,] the
result, all too often, is catastrophically maladjusted children.
Interest of M.E., 283 A.3d 820, 836–837 (Pa. Super. 2022) (internal
citations, quotations, ellipses, and original brackets omitted). Further, we
note that “[w]hen conducting a bonding analysis, the court is not required to
use expert testimony. [Instead, s]ocial workers and caseworkers can offer
evaluations as well.” In re Z.P., 994 A.2d at 1121 (citation omitted).
Here, initially we note that Mother concedes that she does not have a
bond with Child and, instead, suggests that she be “given the opportunity to
properly bond” with Child. Mother’s Brief at 12. Moreover, as set forth above,
the Child’s case manager testified at the termination hearing and the trial
court ultimately determined that Child considers Mother “a random person to
hang out with,” Child never asks about Mother, there was no bond between
Mother and Child, and Child would not suffer irreparable harm if their
relationship were severed. N.T., 5/1/2023, at 14. Child has been with his
foster parents since May 2022, they attend to all of his needs, and Child is
bonded to them and calls them mom and dad. Id. at 17-20.
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Upon review, we discern no trial court abuse of discretion or error of law
in involuntarily terminating Mother's parental rights under Section 2511(b).
Here, the trial court examined the bond between Mother and Child and
determined that termination would not destroy a necessary and beneficial
relationship and that Child would not suffer extreme emotional consequences
from severing that relationship. The trial court also considered intangibles,
such as the love, comfort, security, stability, and the bond that Child has with
his foster parents. There was ample evidence that the foster parents provide
financial, educational, and emotional support for Child and that they are
bonded. Mother's own feelings of love and affection for Child, alone, do not
prevent termination of her parental rights. As such, Mother's second appellate
issue lacks merit.
Finally, Mother argues that she was “deprived of her due process and
equal protection under the law” by “making broad reference to the record,
including witness testimony and exhibits presented.” Mother’s Brief at 13.
Relying on the trial court’s submission in its Rule 1925(a) opinion that if this
Court “believes that the trial court’s statements on the record do not
adequately address any issue on appeal, the trial court will submit a
supplemental opinion upon remand[,]” Mother argues that she “is unsure of
the trial court’s position” and that she “shouldn’t have to guess the reasoning
for the trial court’s ruling.” Id.
Pennsylvania Rule of Appellate Procedure 1925(a)(2), pertaining to
children’s fast track appeals, provides that “[u]pon receipt of the notice of
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appeal and the concise statement of errors complained of on appeal required
by Pa.R.A.P. 905(a)(2), the judge who entered the order giving rise to the
notice of appeal, if the reasons for the order do not already appear of
record, shall within 30 days file of record at least a brief opinion of the
reasons for the order, or for the rulings or other errors complained of, which
may, but need not, refer to the transcript of the proceedings.”
Pa.R.A.P. 1925(a)(2)(ii) (emphasis added). Moreover, our Supreme Court has
stated “that the purpose of Rule 1925 is to facilitate appellate review and to
provide the parties and the public with the legal basis for a judicial decision.
If that basis is evident from the record, the trial court need not issue an
opinion explaining it.” Commonwealth v. Rogers, 250 A.3d 1209, 1224 (Pa.
2021). In this case, as explained at length above, the basis for the trial court’s
decisions were evident from the record. The trial court also specifically
referred to the transcript of the proceedings in its brief Rule 1925(a) opinion.5
As such, Mother is not entitled to relief on her final claim.
For all of the foregoing reasons, it was proper for the trial court to
involuntarily terminate Mother's parental rights pursuant to 23 Pa.C.S.A.
§§ 2511(a) and (b).
____________________________________________
5 While the record is clear that termination was proper in this matter, the
trial court’s decision is certainly not the model of clarity. To facilitate our
review, it would be beneficial for the trial court to set forth each subsection of
Section 2511(a) as alleged in the termination petition and more methodically
determine whether there was clear and convincing evidence to support or
reject each basis for termination.
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Decree and order affirmed.
Date: 11/03/2023
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