In the Int. of: Z.C.R., Appeal of: P.C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: P.C., MOTHER :
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: No. 249 EDA 2021
Appeal from the Order Entered December 23, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000907-2019
IN THE INTEREST OF: Z.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: P.C., MOTHER :
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: No. 250 EDA 2021
Appeal from the Order Entered December 23, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000294-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 20, 2021
P.C. (“Mother”) appeals from the orders terminating her parental rights
to Z.R. (“Child”) and changing Child’s permanency goal to adoption. Mother
argues the evidence was insufficient to terminate her parental rights and to
change Child’s permanency goal to adoption. She also contends the court
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* Former Justice specially assigned to the Superior Court.
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erred in not appointing separate counsel to represent Child’s legal interest.
We affirm.
In December 2019, Philadelphia Department of Human Services (“DHS”)
filed a petition to change Child’s goal to adoption and a petition to terminate
Mother’s parental rights. The trial court held a hearing at which the following
testimony was adduced:
[Case manager Sabria] Bell testified an Order of Protective
Custody (OPC) was filed on 2/19/2019, based on concern
that Mother was under the influence of drugs when the Child
was in her care. The Child was removed from Mother’s care
and Adjudicated Dependent on 4/30/2019, based on
present inability of both of her parents to care for her.[1]
Since that date, the Child has been in DHS custody.
Ms. Bell testified the initial single case plan for the family
was developed in July 2019 and Mother’s objectives were to
obtain drug and alcohol treatment, obtain suitable housing,
attend visitation and sign releases for information. She
noted that Mother was aware of her objectives and that her
compliance was necessary for reunification to occur. Ms. Bell
testified Mother’s current objectives are the same and
obtaining a parenting capacity evaluation was also added.
She noted that drug and alcohol monitoring and treatment
were objectives because Mother was under the influence of
drugs when . . . Child came into care. Ms. Bell testified
Mother’s drug of choice was PCP.
Ms. Bell testified Mother was engaged in substance abuse
treatment at Tri-State and received Suboxone as a
treatment modality. Mother was referred to [the Clinical
Evaluation Unit (“CEU”)] for assessments, and most recently
she attended one in July 2020. Mother failed to comply with
the assessment ordered in November 2020, according to a
report received from CEU on 11/05/2020. She noted that
Mother had given birth to a child, A.G., born [in March 2020]
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1 The court found aggravated circumstances existed based on the termination
of Mother’s parental rights to older children.
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and that child tested positive for PCP. Ms. Bell testified
Mother had never provided her with documentation that she
. . . successfully completed a drug and alcohol program.
Regarding drug screens, Ms. Bell testified Mother tested
positive for PCP on 12/11/2019, and has not undergone any
other drug screens at CEU.[2] Mother is receiving drug
screens at Tri-State and they schedule screening every
three months and claim the only substance present in the
screens is Suboxone, however, Mother has not provided
documentation of those alleged negative screens. Ms. Bell
has concerns about [Child] being with Mother because of her
continued drug use, noting that Mother’s baby was born in
March 2020, with PCP in her system and Mother has not
addressed her drug issue.
Ms. Bell testified Mother receives mental health treatment
at Best Behavioral Health and attended the program on
January 2020, July 2020 and the last time she attended was
[September 2020]. Mother is not actively attending at the
present time. Mother has not provided her with
documentation of successfully completing a mental health
program, and that would cause concern for the return of
[Child] to her care.
Regarding housing, Ms. Bell testified Mother currently
resides at . . . Hagerman St., Philadelphia, PA. She has
made efforts to see the home in the last six months,
however, Mother does not make herself available for a
walkthrough. Mother has never provided her with
documentation of a rental lease agreement. Therefore, Ms.
Bell testified she cannot assess the home and make a
recommendation of whether it is appropriate, and this
causes her concern about [Child] being at the home with
Mother.
Ms. Bell testified Mother informed her that she is not
employed and receives unemployment payments. However.
Mother has not provided documentation of how she supports
herself, and this causes concerns about [Child] being in
Mother’s care. Further, Mother was referred to ARC for
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2 The CEU was not conducting random drug screens due to the COVID-19
pandemic. N.T., 12/23/20, at 24.
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parenting, housing and employment, however, she has not
completed any of those programs.
Regarding visitation, Ms. Bell testified Mother’s visits began
as supervised and were never expanded beyond that level
because of Mother’s minimal compliance of her goals. She
noted that she had the opportunity to be present during
some of Mother’s visits and Mother has cursed when upset
and visits had to be stopped early or ended when Mother
would become erratic.
Ms. Bell testified Mother was referred to Dr. Dugal for a
Parenting Capacity Evaluation (PCE), however, it was not
completed because Dr. Dugal had a difficult time contacting
Mother. Ms. Bell opined that Mother is not able to care for
the Child at this time because she has not completed her
objectives and her aggressive behavior is a concern.
Ms. Bell testified the Child lives with her Pre-Adoptive Foster
Parent, L.L., and she has had the opportunity to see them
together. [Child] loves her foster Parent, and the Child gets
excited when she sees her, and they are very affectionate
with each other. The Child hugs and loves on her Foster
Parent and they have a great relationship and are bonded.
L.L. meets all of the Child’s needs and the Child looks to L.L.
for love, affection, safety and support. Ms. Bell opined that
the Child may know who her Mother is, however, she
understands that L.L. is the one who takes care of her. She
believes the Child would not suffer irreparable harm if
Mother’s parental rights were terminated and it would be in
the Child’s best interests to be adopted.
Mother was the next witness to testify. She stated she
attends mental health treatment at Best Behavioral Health
Center for three years and speaks to her therapist weekly
on the telephone. Regarding her drug issues, Mother
testified she was using PCP in March 2020, when her
youngest Child was born, but stopped using after the baby
was born. She began attending a drug and alcohol program
at Tri-State. She talks to a therapist monthly and receives
a prescription medication of Suboxone. She denies use of
any other drug.
Mother testified she signed Releases for all the programs for
Ms. Bell. She noted she resides in a one-bedroom apartment
on Hagerman Street and is able to care for her daughter.
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Regarding visitation, Mother testified she visits her Child
twice a week, either at the Agency or on video calls. Mother
stated she received a Certificate of completing a parenting
class at 1101 Chestnut St., Philadelphia before the COVID
period began. Regarding drug screens, Mother testified she
did not remember when she last tested positive for PCP. She
desired to undergo random drug screens, however, was
prevented from doing so because the courts were closed
because of COVID.
Mother testified Ms. Bell lied about not being able to assess
the apartment because Ms. Bell always wanted to set up a
specific time and she would not come at the time that
Mother requested. Regarding her income, Mother stated she
receives unemployment and cannot find a job now, because
no jobs are available.
On cross-examination by Kristina Helmers, Esq., attorney
for DHS, Mother stated she was not able to provide
documentation to Ms. Bell of her substance abuse treatment
at Tri-State because she could not get down there. Mother
did not recall her contact with CEU on 7/23/20 where she
told them she no longer wanted to complete [the] drug and
alcohol assessment. Mother did not recall her contact with
CEU on 8/03/2020 where she told them she was busy and
could not complete the assessment. Mother did not recall on
8/07/2020 when she hung up the telephone during the
assessment. Mother testified Ms. Bell never asked for
documentation regarding her unemployment income and
therefore, she did not provide it. Mother testified she has a
copy of the rental lease to her apartment; however, she did
not provide it to Ms. Bell.
Trial Ct. Op., filed Feb. 25, 2021, at 12-16 (“1925(a) Op.”) (internal citations
omitted).
The court found termination proper under 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b). It also changed Child’s permanency goal to adoption.
Mother filed a timely notice of appeal.
Mother raises the following issues:
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1. Whether the trial court erred or abused its discretion in
determining that [DHS], had met its burden of proof by clear
and convincing evidence that [Mother] evidenced a settled
purpose of relinquishing her claim to the child or has refused
or failed to perform parental duties, for at least six months
immediately preceding the filing of the petition.
2. Whether the trial court erred or abused its discretion in
determining that Petitioner, DHS, had met its burden of
proof that [Mother] has shown repeated and continued
incapacity, abuse, neglect or refusal, or that such
incapacity, abuse, neglect or refusal causing his child to be
without essential parental care, control or subsistence
necessary for the child's physical or mental well-being;
3. Whether the trial court erred or abused its discretion in
determining that Petitioner, DHS, had met its burden of
proof that the conditions and causes or any such incapacity,
abuse, neglect or refusal cannot or will not be remedied by
[Mother];
4. Whether the trial court erred or abused its discretion in
determining that Petitioner, DHS, had met its burden of
proof that the conditions which led to the removal of the
child continue to exist;
5. Whether the trial court erred or abused its discretion in
determining that Petitioner, DHS, had met its burden of
proof that the services or assistance reasonably available to
[Mother] are not likely to remedy the conditions which led
to the removal of the child within a reasonable period of time
and erred or abused its discretion in determining that DHS
made reasonable efforts to reunify this family;
6. Whether the trial court erred or abused its discretion in
determining that Petitioner, DHS, had met its burden of
proof that services or assistance were reasonably available
to [Mother];
7. Whether the trial court erred or abused its discretion in
determining that Petitioner, DHS, had met its burden of
proof that changing the child’s permanency goal to adoption
and terminating [Mother’s] rights would best serve the
needs and welfare of the child.
...
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8. Whether the [t]rial court erred in declining to appoint an
attorney for the child for the termination hearing on the
basis of her being too young to verbalize her preferred
outcome where:
• there was no record of the appointed child
advocate/guardian ad litem having attempted to ascertain
her preference verbally or in any other way;
• 23 Pa.C.S.A. [§] 2313(a) requires that the child’s legal
interests must be represented, and where there is no record
of the Trial Court having ascertained the position of the child
advocate as to her legal interests;
or
• there is no record of the [t]rial [c]ourt having ascertained
whether the child advocate had considered the child’s other
legal interests potentially at stake, for example her rights to
connection to her siblings and other biological relatives, the
possibility of inheritance through her parents and their
lineage, etc.
Mother’s Br. at 5-6 (footnote and emphases omitted).
We will first address Mother’s last issue, in which she argues the court
erred in not appointing independent counsel to represent Child’s legal interest.
Mother argues this issue is non-waivable. Mother notes the court expressly
declined to appoint legal counsel and contends there is no record that Child’s
legal interest was considered by Child’s guardian ad litem (“GAL”). She claims
that legal counsel would have protected Child and better developed the record
for the court to make an appropriate needs and welfare assessment. She
claims “[t]he record was only superficially developed for the court to make the
appropriate needs and welfare assessment under § 2511(b).” Mother’s Br. at
26.
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Mother has not waived her claim that the court erred in not appointing
counsel to represent Child’s legal interest. In In re Adoption of K.M.G., 240
A.3d 1218, 1236 (Pa. 2020), the Pennsylvania Supreme Court concluded that
we may sua sponte review the record to determine whether the trial court
appointed legal counsel and determined that the child’s legal interest and best
interest did not conflict. We will therefore review the merits of Mother’s claim.
A trial court may properly determine that it need not appoint separate
legal counsel if the child’s views cannot be ascertained because of the child’s
young age. In In re T.S., the subject children were two and three years old,
and the Pennsylvania Supreme Court found that their legal interests, “which .
. . are synonymous with the child’s preference . . . were not ascertainable
during the termination proceedings.” 192 A.3d 1080, 1089 (Pa. 2018). It
found “there can be no conflict between an attorney’s duty to advance a
subjective preference on the child’s part which is incapable of ascertainment,
and an attorney’s concurrent obligation to advocate for the child’s best
interests as she understands them to be.” Id. at 1090.
Here, Child was not yet three years old at the final hearing. The court
permissibly determined that her preference was unascertainable. It therefore
did not err in not appointing counsel to represent Child’s legal interest.
In her first six issues, Mother argues DHS did not establish grounds for
termination by clear and convincing evidence. She contends that Bell testified
that Mother was engaged in programs to address substance abuse and mental
health and that she maintained a relationship with her daughter. Further,
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although Mother had signed the releases and the providers allegedly gave
verbal confirmation of services, both Bell and Mother had trouble getting
documentation. She argues that “COVID-19 disruptions were at least in part
responsible” for the difficulty. Mother’s Br. at 17. She further claims that for
one of the providers, the last time Bell contacted the provider was a month
before the hearing, and “[t]his level of monitoring is not in conformity with
the current local administrative court order,” and does not meet the clear and
convincing evidence standard. Id. at 10-11. Mother claims that both she and
Bell testified that she was remedying her drug use.3 Mother further claims that
the court shifted the burden to her. She points to its statement that to avoid
termination, she had to provide documentation that she complied with the
services. As to Section 2511(a)(2), she argues that the evidence revealed the
conditions that led to placement had been addressed by ongoing drug
treatment.
“A party seeking termination of parental rights bears the burden of
establishing grounds for termination ‘by clear and convincing evidence.’” In
re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018) (quoting In re
Z.S.W., 946 A.2d 726, 728 (Pa.Super. 2008)). Clear and convincing evidence
is evidence “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
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3 Mother also asserts a claim that the court erred in admitting two exhibits,
which allegedly contained hearsay. This claim was not included in her
Pa.R.A.P. 1925(b) statement or in her Statement of Questions Involved. She
therefore has waived this claim.
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the precise facts in issue.” Id. (quoting In re Z.S.W., 946 A.2d at 728-29).
“We accept the findings of fact and credibility determinations of the trial court
if the record supports them.” Id. “If the factual findings have support in the
record, we then determine if the trial court committed an error of law or abuse
of discretion.” Id.Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Here,
Mother argues the court erred in finding grounds for termination under Section
2511(a). She did not raise on appeal a claim that the court erred in finding
termination was in Child’s best interest under Section 2511(b), and we will
therefore not discuss that section.4
Under Section 2511(a), “the focus is on the conduct of the parent,” and
the party seeking termination “must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for termination
delineated in Section 2511(a).” Id. We will affirm the trial court’s decision as
to Section 2511(a) where the court properly terminated parental rights
pursuant to any one subsection of 23 Pa.C.S.A. § 2511(a). See In re B.L.W.,
843 A.2d 380, 384 (Pa.Super. 2004) (en banc).
Here, we will determine whether the court properly terminated Mother’s
rights under 23 Pa.C.S.A. § 2511(a)(2). That provision permits termination
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4 Mother argues that, if the court had appointed legal counsel, such counsel
would have developed a claim under Section 2511(b), but makes no argument
that, based on the evidence presented at the hearing, the court erred in
finding termination proper under Section 2511(b).
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where “[t]he 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.” 23 Pa.C.S.A. § 2511(a)(2).
Section 2511(a)(2) thus requires the moving party to produce clear and
convincing evidence of three elements: (1) the parent’s repeated and
continued incapacity, abuse, neglect or refusal to discharge parental duties;
“(2) such incapacity, abuse, neglect or refusal has caused the child to be
without essential parental care, control or subsistence necessary for his
physical or mental well-being; and (3) the causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied.” In re Adoption of M.E.P.,
825 A.2d 1266, 1272 (Pa.Super. 2003).
The trial court found DHS established by clear and convincing evidence
that grounds for termination existed:
[THE COURT]: All right, considering all the evidence in this
case -- and it’s pretty much clear, convincing and essentially
uncontradicted, but here it is contradicted, that is by the
testimony of the mother.
I give great weight to the testimony of Ms. Bell, who has
been on this case for a considerable period of time. She
knows the case inside and out, and her [testimony] rings
true. I give great weight to her credibility.
I give very little weight to [M]other’s credibility, since
[M]other’s testimony is essentially self-contradictory and
inconsistent. And . . . therefore, I am not considering much
of what she said as being truthful.
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...
THE COURT: -- I find that the evidence supports a finding
under the statute, under 2511(a)(1), (2), (5) and (8), based
on noncompliance of both parents. In the case of [Mother],
there was some verbal attempt to convince the Court that
she is in compliance, but [Mother] has the burden of
showing documents.
Her testimony alone will not support a finding that she is in
compliance. She comes to court and, as I’ve heard often,
parties believe that it is the agency’s responsibility to supply
their evidence by way of documentary proof that they are
engaged in various services, and in compliance.
It’s not the Department’s responsibility to present evidence
to show that you are in compliance. It is, and always has
been, the parties’ responsibility to present evidence, and I
find no evidence whatsoever has been supported to
document the so-called attempt by [M]other to come into
compliance.
I also find, under 2511(b), that there is parental relationship
with [M]other that could not be remedied in a very short
period of time, and I believe that the child has a parent bond
with the caregiver, and not with [M]other, and there would
be no irreparable harm in terminating [M]other’s parental
rights.
N.T., 12/23/2020, at 74-75.
The trial court did not abuse its discretion. The court credited Bell’s
testimony, which supports findings that Mother has not maintained her drug
rehabilitation and mental health treatment, and has not made progress on her
other goals. She tested positive for PCP in March 2020 and did not provide
documentation of treatment sessions or of negative drug screens. Mother also
did not cooperate with the CEU and did not schedule a home assessment, even
though Bell attempted to schedule one on numerous occasions.
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The court’s reference to Mother’s failure to provide documentation of
the participation in, or completion of, programs did not shift the burden of
proof to Mother. Rather, DHS presented clear and convincing evidence of
Mother’s failure to complete her objections, as well as testimony of its
attempts to obtain information regarding her participation. Mother could have
rebutted this testimony with documentation of her participation but did not do
so. Further, the lack of documentation and progress was not due to the
pandemic. Mother could not obtain random drug tests due to the COVID-19
pandemic and Ms. Bell had difficulty reaching a provider, possibly due to the
pandemic. Ms. Bell, however, received information concerning Mother’s
treatment by contacting the CEU and Mother was able to obtain scheduled
drug screens and continue with therapy.
In issue seven, Mother claims the evidence does not support the goal
change to adoption, as the evidence supported a finding she remedied the
drug abuse that brought Child into care and she and Child can safely be
reunited once her home is assessed and Ms. Bell receives documentation of
her progress. She further claims that the bond and family connections will
best serve Child’s interest.
We review a court’s order changing the placement goal to adoption for
an abuse of discretion. In re N.C., 909 A.2d 818, 822 (Pa.Super. 2006).
Section 6351(f) of the Juvenile Act, in pertinent part, requires a court to
review, inter alia, the following at permanency review hearings:
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(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the
child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
(5) The likely date by which the placement goal for the child
might be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
42 Pa.C.S.A. § 6351(f). When determining whether to change the goal, the
trial court must focus on the child and determine the goal with reference to
the child’s best interests, not those of the parents. In re N.C., 909 A.2d at
823. “Safety, permanency, and well-being of the child must take precedence
over all other considerations.” Id.; see also In re A.K., 906 A.2d 596, 599
(Pa.Super. 2006) (finding statutory factors “clearly place the trial court’s focus
on the best interests of the child”) (quoting In re C.V., 882 A.2d 481, 484
(Pa.Super. 2005)).
Here, the trial court changed Child’s goal to adoption, finding that, under
the totality of the evidence, a goal change was in Child’s best interest:
This Court finds the record sustains the factual findings and
legal conclusions regarding . . . Child’s current placement.
Mother’s lack of compliance, and lack of willingness to gain
the skills to be a responsible parent for this Child. Most
importantly, this Court must act to fulfill [Child’s] right to
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have proper parenting and fulfillment of her potential in a
permanent, healthy, safe environment. Here[,] the totality
of the evidence supports this Court’s conclusion that
termination of Mother’s parental rights and a goal of
adoption is in [Child’s] best interest.
1925(a) at 20.
The court did not abuse its discretion. Based on the evidence presented,
it was in Child’s best interest to change the goal to adoption. The placement
was still necessary and Mother did not make sufficient progress towards
alleviating the need for the placement, and the testimony established that
Child had a bond with foster mother.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2021
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