In the Int. of: Z.J.M., a Minor Appeal of: M.B.

J-S01040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.J.M., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: M.B., Mother : No. 1208 MDA 2016
Appeal from the Decree entered June 28, 2016
in the Court of Common Pleas of Dauphin County,
Orphans' Court at No(s): 39-AD-2016; CP-22-DP-117-2013
IN THE INTEREST OF: Z.O.B., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: M.B. : No. 1209 MDA 2016
Appeal from the Decree entered June 28, 2016
in the Court of Common Pleas of Dauphin County,
Orphans' Court at No(s): 38-AD-2016; CP-22-DP-116-2013
BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 27, 2017
M.B. (“Mother”) appeals from the Decrees1 granting the Petitions filed
by Dauphin County Social Services for Children and Youth (“SSCY”),
involuntarily terminating her parental rights to her son, Z.O.B., born in
August 2011, and her daughter, Z.J.M., born in December 2012 (collectively,
“Children”), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b),
1
This Court, sua sponte, consolidated Mother’s appeals from the termination
Decrees.
J-S01040-17
and changing their permanency goals to adoption.2 Additionally, Damian J.
DeStefano, Esquire (“Attorney DeStefano”), has filed a Petition to Withdraw
as counsel and an accompanying brief pursuant to Anders v. California,
386 U.S. 738, 744 (1967). We grant Attorney DeStefano’s Petition to
Withdraw, and affirm the trial court’s Decrees.
In its Opinion, the trial court aptly summarized the facts underlying
this case, which we adopt for the purpose of this appeal. See Trial Court
Opinion, 8/31/16, at 1-5, 6-8. By Decrees dated June 28, 2016, the trial
court granted SSCY’s Petitions, involuntarily terminating Mother’s parental
rights to Children, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and
(b), and changing Children’s permanency goals to adoption.
Mother, through counsel, filed timely Notices of Appeal. 3 Attorney
DeStefano subsequently filed a Petition to Withdraw as counsel and an
Anders Brief, in lieu of a Pa.R.A.P. 1925(b) Concise Statement of errors
complained of on appeal.
2
SSCY included A.M. (“Father”) in its Petitions. In its June 28, 2016
Decrees, the trial court also involuntarily terminated Father’s parental rights
to Children. Father filed separate appeals from the Decrees, which include
Nos. 1164 MDA 2016, 1165 MDA 2016, 1240 MDA 2016 and 1241 MDA
2016, and is not a party to the instant appeal.
3
We observe that it was improper for Mother to file a single Notice of Appeal
as to each child with the Orphans’ Court, as each Decree identified, and was
entered on, both the Juvenile Court and the Orphans’ Court dockets. See
Pa.R.A.P. 341, Note (stating that “[w]here, however, one or more orders
resolves issues arising on more than one docket or relating to more than one
judgment, separate notices of appeal must be filed.”) (emphasis added).
Nevertheless, because we discern no prejudice arising from this procedural
misstep, we decline to quash Mother’s appeal.
-2-
J-S01040-17
In the Anders Brief, the following claims are presented for our review:
I. Whether the trial court erred [or] abused its discretion when
it[] changed the [permanency] goal from reunification to
adoption?
II. Whether the trial court erred [or] abused its discretion when
it involuntarily terminated [] Mother’s parental rights?
Anders Brief at 11. Mother neither filed a pro se brief, nor retained
alternate counsel for this appeal.
We must first determine whether Attorney DeStefano has complied
with the dictates of Anders in petitioning to withdraw from representation.
See In re X.J., 105 A.3d 1, 3 (Pa. Super. 2014) (stating that “[w]hen
counsel files an Anders brief, this Court may not review the merits without
first addressing counsel’s request to withdraw.”). This Court has extended
the Anders principles to a first appeal by an indigent parent from a decree
involuntarily terminating his or her parental rights. See In re V.E., 611
A.2d 1267, 1275 (Pa. Super. 1992). Pursuant to Anders, when an attorney
believes that an appeal is frivolous and wishes to withdraw as counsel, he or
she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the [client], counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
[the client] and advise him of his right to retain new counsel or
to raise any additional points that he deems worthy of the
court’s attention.
-3-
J-S01040-17
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
With respect to the third requirement of Anders, i.e., that counsel inform
the client of his or her rights in light of counsel’s withdrawal, this Court has
held that counsel must “attach to [a] petition to withdraw a copy of the
letter sent to the[] client advising him or her of their rights.”
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief must
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once
counsel has satisfied the above requirements, this Court “must undertake an
independent examination of the record to determine whether the appeal is
wholly frivolous.” In re S.M.B., 856 A.2d at 1237.
Here, Attorney DeStefano has complied with the requirements set
forth in Anders by indicating that he made a thorough review of the record
and determined that an appeal would be frivolous. Further, Attorney
DeStefano provided a letter to Mother, informing her of Attorney
DeStefano’s intention to withdraw, and advising Mother of her rights to
retain counsel, proceed pro se, and file additional claims. Finally, Attorney
-4-
J-S01040-17
DeStefano’s Anders Brief meets the standards set forth in Santiago.
Because Attorney DeStefano has complied with the procedural requirements
for withdrawing from representation, we will independently review the record
to determine whether Mother’s appeal is, in fact, wholly frivolous.
As Mother’s claims are related, we will address them together. In her
first claim, Mother argues that the trial court erred in changing Children’s
permanency goal to adoption. Anders Brief at 18. In her second claim,
Mother argues that the trial court abused its discretion by involuntarily
terminating her parental rights to Children. Id. at 21.
In its Opinion, the trial court set forth the relevant law, addressed
Mother’s first claim, and concluded that it lacks merit. See Trial Court
Opinion, 8/31/16, at 8-14; see also id. at 12 (wherein the trial court
adopted its reasoning as set forth on the record during the termination
hearing); N.T., 6/28/16, at 117-25. We agree with the reasoning of the trial
court and affirm on this basis as to Mother’s first claim. See Trial Court
Opinion, 8/31/16, at 8-14.
Additionally,
[p]ursuant to [Section] 6351(f) of the Juvenile Act, [42
Pa.C.S.A. § 6351(f),] when considering a petition for a goal
change for a dependent child, the juvenile court is to consider,
inter alia: (1) the continuing necessity for and appropriateness of
the placement; (2) the extent of compliance with the family
service plan; (3) the extent of progress made towards alleviating
the circumstances which necessitated the original placement; (4)
the appropriateness and feasibility of the current placement goal
for the children; (5) a likely date by which the goal for the child
might be achieved; (6) the child’s safety; and (7) whether the
-5-
J-S01040-17
child has been in placement for the last fifteen of the last
twenty-two months. The best interests of the child, not the
interests of the parent, must guide the trial court. As this court
has held, a child’s life simply cannot be put on hold in the hope
that the parent will summon the ability to handle the
responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and
quotation marks omitted).
At the time SSCY filed the Petitions, Children had been in SSCY’s care
for 32 months. See Trial Court Opinion, 8/31/16, at 5. At the termination
hearing, the trial court stated, on the record, that Children’s needs “have not
and will not be met with Mother….” N.T., 6/28/16, at 122. The trial court
reasoned that Mother failed to satisfy her service objectives because she had
not found suitable housing and had not provided proof of employment;
Mother did not complete her mental health objectives; Children have a close
emotional bond with the foster family, but not with Mother; and there are
new substance abuse concerns because Mother tested positive for cocaine
and oxycodone within the three weeks before the termination hearing. See
id. at 121-22. The trial court also stated that the evidence “screams, cries
for [C]hildren to be placed in a home where they’re going to be loved and
cared for,” and noted that the foster family has been providing love, care
and discipline for Children for more than two years. See id. at 122-23.
Upon review, we conclude that sufficient competent evidence supports the
goal change to adoption. Thus, we conclude that Mother’s second claim is
frivolous.
-6-
J-S01040-17
Further, our independent examination of the record indicates that
there are no other non-frivolous claims that can be raised. See In re
S.M.B., 856 A.2d at 1237. Accordingly, we conclude that Mother’s appeal is
frivolous, and grant Attorney DeStefano permission to withdraw as counsel.
Petition to Withdraw granted; Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
-7-
Circulated 02/03/2017 03:23 PM
ORIGINAL
IN THE INTEREST OF : IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
Z.0.B., a Minor
: NO. 38 ADOPT 2016/CP-22-116-2013 /·
APPEAL OF M.B., Mother SUPERIOR COlJRT
DOCKET NO. 1209 MDA 2016
rN THE INTEREST OF : IN THE COURT'OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
Z.J.M., a Minor
: NO. 39 ADOPT 2016/CP-22-117-2013
APPEAL OF M.B., Mother SUPERlOR COURT
DOCKET NO. 1208 MDA 2016
IN THE IN"TEREST OF : IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
Z.O.B., a Minor
: NO. 38 ADOPT 2016/CP-22-116-2013 /
APPEAL OF A.M., Father SUPERlOR COURT
DOCKET NO. 1240 MDA 2016
IN TI{E INTEREST OF : IN TtIE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
Z.J.M., a Minor
: NO. 39 ADOPT 20 l 6/CP-22-117-2013
APPEAL OF A.M., Father
SUPERJOR COURT
DOCKET NO. 1241 MDA 2016
TRIAL COURT OPINION
These appeals follow the Decrees filed June 28, 2016, which terminated the parental rights of
rvimlll~''Mother
'') and-(''Father'') to-
("Z.0.B."),
born 8/23/11 and Z-~(Z. J.M."), born 12/3/12 ("Children").
1For 2
the reasons set forth, the Decrees should be affirmed,
FACTUAL AND PROCEDURAL BACKGROUND
MOTHER
Dauphin County Social Services for Children and Youth ("Agency") first became involved
with Mother in April l 999 while working with Mother's other children, all of whom who were
removed from he, care. (N.T. p. 28). Mother has a total of 9 children, only one of whom remains
3
in her care. Id. Prior to Children's placement into the care of the Agency which is the subject of
these proceedings, Ms. Candice Raines served as caseworker for Mother and Children from
April 2012 through November 2013. (N.T. pp. 26-27). During that period, the Agency assisted
Mother with establishing stable housing and providing for the basic needs of the children such as
diapers, wipes, formula and bedding. (N.T. p. 29). The Agency offered Mother parenting classes
with which she did not follow through. (N.T. pp. 29-31). The home in which Mother and
Children lived was dirty, cluttered and unsafe. (N.T. p. 30). Mother resided with her sister, who
had addiction problems. (N.T. p. 31). At one point, the house in which Mother lived burned
I
On July 22, 2016, counsel for Mother filed a Notice of Appeal which set forth counsel's statement as to the
conclusion that no non-frivolous issues exit and the intention to file a Petition to Withdraw and supporting brief as
required by Anders v, California, 386 U.S. 738 (1967) and Commonwealth v. McCiendon, 434 A.2d l 185 (Pa.
1981 ). Accordingly, counsel filed no statement of matters complained of on appeal.
2
The Decree as to Z.l.M. also terminates the rights of"Unknown Father" in that Z.J.M.'s birth certificate lists the
father as "unknown". A~-laims that he is the father ofZ.J.M.
3
That child is not a subject of these proceedings.
down. She rented rooms or stayed with friends. (N.T. p. 33). Overall, Mother's housing situation
remained unstable. (N.T. p. 30).
In June 2013, a foster family, the 89 informally assumed the care of Children. (N.T. p.
35). During Children's stay with the foster family, Mother visited Children. Id.
On October 11, 2013, while Children were in Mother's care, the Agency received a referral
which indicated that Mother cut her wrists and posted a "goodbye letter" on Face book. (N .T.
pp.35-36). The Agency assumed temporary care and custody of Children. (N.T. p. 36).
On October 23, 2013, an Adjudicatory and Dispositional Hearing was held at which Children
were deemed dependent and placed into the custody of the Agency. (N.T. p. 36). The Dauphin
County Juvenile Court found that aggravated circumstances existed based upon the previous
involuntary termination of parental rights as to Mother's other children.
The Agency established the following service objectives for reunification:
l . Attend all court hearings and monthly treatment plan meetings.
2. Sign all releases of information forms requested to ensure the compliance in meeting
identified objectives.
3. Notify the Agency within 24 hours of new residence or new contact information.
4. Reimburse the County of Dauphin for the support of any children in placement in an
amount to be determined by the Dauphin County Domestic Relations Office.
5. Obtain and maintain clean, safe, stable and appropriate housing for herself and her
children for a minimum of 3 months with rent and utility bills kept current.
6. Follow up with Harrisburg Housing Authority in August 2014.
7. Obtain and maintain a CMU worker and actively participate in recommended
services.
2
8. Participate in and follow all recommendations of psychiatric evaluation.
9. Learn and demonstrate appropriate stress management skills and coping skills.
I 0. Participate in therapy as deemed necessary by evaluations.
11. Provide proof of legal income to support herself and her children.
12. Complete a budget to determine what income is needed to maintain housing and
additional expenses.
13. Provide proof of legal employment and income, or consistent income, to support
herself and the children.
14. Apply for additional income through Pennsylvania Department of Health and Human
Services and Supplemental Security Income ("SSI").
I 5. Participate in recommended parenting classes and provide proof of attendance.
16. Participate in reunification services; demonstrate understanding of information
provided and skills learned.
17. Participate in Ages and Stages questionnaire for both children and follow
recommendations if necessary. ·
(Petition for Goal Change to Adoption and Involuntary Termination of Parental Rights, May 18,
2016, para. ttt.(1)-(17); para. uuu. (1)-(1 I)).
As to the objective that Mother obtain and maintain safe and appropriate housing, while
Z.0.B. and Z.J.M were in placement, Mother, pregnant with another child, resided in
Lourdeshouse Maternity Home 4, a temporary home for pregnant women. (N.T. p. 58). Mother
gave birth to that child in December 2013. (N.T. p. 56). In October 2014, Mother moved to
Bretheren Housing Association. !d. In June, 2015, Mother was discharged from the Bretheren
Housing Association for failure to follow program rules by allowing unauthorized persons into
4
Incorrectly referred to in the transcript as "Lord's House".
3
the home. (N.T. p. 79). Mother then moved to her mother's home, which was not an approved
home for the Children. (N.T. pp. 79-80; N.T. p. 81).
As to mental health objectives, Mother completed a psychiatric evaluation in February 2014.
Mother was diagnosed with bipolar II disorder, borderline personality disorder and post-
traumatic stress disorder. (N.T. p. 57; Agency Exhibit 9). Mother was discharged from
Northwestern Hwnan Services as unsuccessful for noncompliance with attendance at weekly
outpatient sessions. (N.T. p. 57). In August 2014, Mother began bi-weekly outpatient counseling
with Youth Advocate Program. (N.T. p. 59). Mother initially complied with the treatment
schedule but was discharged as unsuccessful in December 2014 for missed sessions. (N.T. p. 60).
Mother did not obtain a Case Management Unit Mental Health Services worker as directed. Id.
Next, in February 2015, Mother sought mental health services from Catholic Charities. When
Mother's therapist left the practice, Catholic Charities offered Mother the opportunity to
continue there or seek a new therapy provider. Mother failed to seek a new provider and was
discharged from Catholic Charities as unsuccessful in August 2015. (N.T. pp. 82-83; N.T. p. 98).
From August 2015 until the time. of the filing of the Petition, Mother did not obtain
recommended mental health treatment.
As to the objective that Mother obtain and maintain legal employment and establish a budget,
at no time did Mother document a legal source of income. (N.T. p. 61). Mother told the Agency
that she was employed at various places but never produced pay stubs. (N.T. p. 81 ). Mother
consistently relied upon the Agency to provide for her children's basic needs. Mother did not
meet the needs of the single child who remained in her care, which raised significant concern as
to her ability to care for three children. (N.T. p. 63).
4
On May 18, 2016, the Agency filed a Petition for Goal Change to Involuntary Termination of
Parental Rights as to Mother and Father. At the time of the filing of the Petition, the Children had
been in care for 32 months, 17 months beyond the requirements of the Adoption and Safe
Families Act.
FATHER
Father was incarcerated during that time that Ms. Raines served as caseworker. (N.T. pp. 26-
27). Ms. Raines had no contact with him. id.
Following release from incarceration in approximately March 2014, Father resided at
Community Corrections Center. (N.T. p. 51). Father attended permanency review hearings on
May 6, 2014, August 5, 2014 and November 4, 2014. Father attended visits with the Children
during the time period of April 2014 through June 2014. (N.T. p. 90).
In June 2014, Agency caseworker Courtney Carney met with Mother, Father and a Keystone
reunification worker. (N.T. p. 52). Father would have been permitted to leave the Community
Corrections Center at that time if he had an approved home plan. (N.T. p. 54). However, Father
did not obtain an approved home plan. Id. In August 2014, Ms. Camey learned from Mother as
of July 2014, Father was re-incarcerated. Id. During his incarceration, Father sent letters to the
Children. (N.T. pp. 69-70).
Father was released from incarceration in January 2015. (N.T. p. 91 ). Father presented as a
resource for Children at that time, but did not obtain a stable home for Children or a source of
income. (N.T. p. 91).
Father failed to refrain from criminal activities. In May 2015, Father was charged with three
counts of burglary, criminal trespass, public drunkenness, terroristic threat with intent to terrorize
5
another, public drunkenness, resisting arrest and aggravated assault. (N.T. pp. 87-88). Mother
was the victim in relation to those charges. (N.T. p. 88). Father pleaded guilty to 5 of the above
charges. The court imposed a sentence of36-72 months. (N.T. p. 88-89; N.T. p. 115, Agency
Exhibit 12).
In July 2015, the Agency added to the service objectives the requirement that Father complete
a mental health evaluation and drug and alcohol evaluation. (N.T. p.92). At no time has Father
provided documentation to the Agency which evidences evaluation or treatment. (N.T. p. 93;
N.T. p. 116).
The Agency undertook efforts to find kinship care and familial resources for Children. The
Agency received a response only from the Sheiry family. (N.T. pp. 70-71).
BONDING ASSESSMENT
Howard S. Rosen, Ph.D., conducted a bonding assessment at the request of Mother. Dr.
Rosen considered whether a bond existed between Mother and Children and how that bond
compared to a bond which might exist between Children and the foster family caregivers. (N.T.
p. 12).
Dr. Rosen noted that at the time of the bonding assessment, Children had lived in the foster
home for approximately 25 months. (N.T. p. 13). Dr. Rosen visited Mother's home and the
foster parents' homes at approximately the same time of day to observe Children's activities,
whether they seemed to enjoy those activities, whether they shared emotion and from whom they
sought attention to address a need. Id. Based upon those observations. Dr. Rosen formed
opinions as to the quality of interactions.
6
At Mother's home, Dr. Rosen observed Children seated at a table having a snack when he
arrived. (N.T. p. 14). Children played with toys and Mother encouraged their play. Children
cooperated with Mother in cleaning up the table. Mother exhibited an appropriate level of
patience. Id.
Although Children cooperated with Mother, Dr. Rosen did not observe a close emotional
bond between Mother and Children. Id. Dr. Rosen concluded that the interaction resembled that
of a nursery school care situation in which an adult provided instruction with which Children
complied. Id.
Dr. Rosen visited the foster parents' home at approximately the same time of day. (N.T. p.
15). Dr. Rosen testified that Z.0.B. greeted Dr. Rosen enthusiastically at the door. During the
visit, Z.O.B. and the foster father worked together on a race car track. Dr. Rosen observed a high
level of engagement between Z.0.B. and the foster father. Z.O.B. called the foster parents "my
mom and my dad'.'. (N.T. p. 17). Z.0.B. also exhibited a close attachment to other children in the
foster home. Id. Dr. Rosen concluded that a close relationship existed. (N.T. p. 15).
During the same visit, Dr. Rosen observed Z.J.M. playing with a doll, pretending to tuck her
into bed. The foster mother played with Z.J .M .. Z.J .M. then sat on the foster mother's lap for a
majority of the visit. (N.T. p. 17).
Overall, Dr. Rosen opined,
... I came to the conclusion that it was in the children's best interests to remain
with the foster parents; that it's clearly who the children see as their mother and
father. And separating them from the caregivers who they've come to know and
trust as their parents would have troubling consequences down the line in terms of
7
it would immediately create levels of insecurity and mistrust, and I think that
leads to problems as they enter school age and later on. So it's not something that
I would recommend.
***
(N.T. p. 18).
Dr. Rosen further opined that although there would be some benefit to Children maintaining
contact with the biological family, remaining with the foster parents is the most appropriate life
course for them. (]\1.T. pp. 18-19). See also, Agency Exhibit 10, Bonding Assessment.
Dr. Rosen did not conduct a bonding assessment regarding Father. (N.T. p. 24).
Agency caseworker Aida Melendez testified that since assuming the case in December 2014,
she has observed Children interact with the foster family. (N.T. p. 95). Throughout the time
Children have been in their care, the foster family has met all of Children's emotional needs.
(N.T. p: 95). Ms. Melendez has observed a close attachment between Children and the foster
family. (N.T. p. 95). Children refer to other family members as brothers, sisters, mom and dad.
(N.T. p. 102). Ms. Melendez believes adoption to be in the best interests of Children. (N.T. p.
94).
Mother testified that she has a fantastic relationship with Children, that they call her mom and
call Mother's other child their brother. (N.T. p. I J 2).
DISCUSSION
The record establishes by clear and convincing evidence that the Court properly terminated
parental rights where Mother and Father failed to remedy the conditions which led to placement
although services and opportunities to do so were made readily available.
8
The Agency sought termination of the Mother and Father's parental rights based upon the
Adoption Act, 23 Pa.C.S. §2511 (a)( I), ( 2), (5) and (8), which provides:
( 1) The parent by conduct continuing for a period of at least six months
immediately preceding the filing of the petition either has evidenced
a settled purpose of relinquishing parental claim to a child or has
refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of
the parent has caused the child to be without essential parental care,
control or subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity, abuse, neglect
or refusal cannot or will not be remedied by the parent.
***
(5) The child has been removed from the care of the parent by the court
or under a voluntary agreement with an agency for a period of at
least six months, the conditions which led to the removal or
placement of the child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of time, the
services or assistance reasonably available to the parent are not
likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time and
termination of the parental rights would 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 would best serve the needs and welfare of the child.
23 Pa.C.S. § 25 l l(a)(J ), (2), (5) and (8).
9
The standard of review governing the trial court's termination of parental rights is well
settled. Namely,
When reviewing an appeal from a decree terminating parental
rights, [the Superior Court] is limited to determining whether the
decision of the trial court is supported by competent evidence. See
In re K. C. W., 456 Pa. Super. 1, 689 A.2d 294, 298 (1997). Absent
an abuse of discretion, an error of law, or insufficient evidentiary
support for the trial court's decision, the decree must stand. Id.
Where a trial court has granted a petition to involuntarily terminate
parental rights, [the Superior Court] must accord the hearing
judge's decision the same weight we would give to a jury verdict.
See In re Child M., 452 Pa. Super. 230, 681 A.2d 793, 800 (1996).
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. See In re Matsock, 416 Pa.Super. 520, 611
A.2d 737, 742 (1992).
In re C. S. 761 A.2d 1197, 1199 (Pa. Super. 2000).
As the party seeing termination, the Agency bears the burden of establishing by clear and
convincing evidence that grounds exist for termination of parental rights. In re J.D. WM, 810
A.2d 688, 690 (PA. Super. 2002). 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." Matter of
Sylvester, 555 A.2d 1202, 1203-1204 (Pa. 1989).
In considering whether the party seeking termination has satisfied the provision of 23 Pa.C.S.
§ 251 l(a)(l), (2), (5) and (8), we keep in mind that a parent has an affirmative duty to work
towards the return of [her] children. In re Adoption of J.J., 511 Pa. 590, 602, 515 A.2d 883, 889
(1986). At a minimum, that "affirmative duty requires that the parent show a willingness to
cooperate with CYS to obtain the rehabilitative services necessary to enable the parent to meet
the duties and obligations inherent in parenthood." Id. In a termination proceeding, the trial
court must consider all the circumstances in determining whether a parent has fulfilled his
10
obligations; the court must measure the parent's performance in light of what would be expected
of any individual under similar circumstances. Matter ofA1.L. W. 307 Pa. 29, 33-34, 452 A.2d
l 021, 1023-24 (1982) tcitations omitted). Further, the Superior Court need only agree with the
trial court's decision as to any one subsection in order to affirm the termination of parental
rights. In re J.E. 745 A.2d 1250 (Pa. Super. 2000) see also In re J.I.R., 808 A.2d 934, 940 n.6
(Pa. Super. 2002).
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.
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 Jove, 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.
***
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 time to perform one's parental responsibilities while
others provide the child with his or her physical and emotional needs.
In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).
11
MOTHER
The Agency met its burden of proof. At the conclusion of the hearing on the Petition, we set
forth on the record an explanation of our findings and reasons. (N.T. pp. 119-127). We
incorporate that statement herein. We amplify those reasons in this written Opinion.
We properly concluded that Mother made virtually no progress in accomplishing the Service
Objectives essential to the safety and well-being of the children. Mother failed to obtain
employment which would enable her to establish a safe home for the Children. Rather, Mother
relied upon the foster family to provide stability and safety for the Children.
The Agency satisfied 23 Pa. C.S. §(a)(8) although the evidence meets the requirements of
(a)(2) and (a)(5) as well.
Mother testified as to the efforts she made toward completing necessary mental health
therapy and finding suitable housing and employment. Our Superior Court has consistently
stated that termination under subsection 2511 (a)(8) does not require an evaluation of the
parents' willingness or ability to remedy the conditions which led to placement of the [ child].
Instead, as the Superior Court has reaffirmed, subsection (a)(8) "requires only that the conditions
continue to exist, not an evaluation of parental willingness or ability to remedy them." In re J.J.,
972 A.2d 5, 11 (2009) (internal citations omitted').
Having found that the Agency proved the statutory grounds for termination of parental rights
under 23 Pa.C.S. §2511 (a)(8), we undertake a separate "best interests" analysis. Pursuant to
Section 2511 (b), a court must give 'primary consideration to the [developmental, physical and
emotional] needs and welfare of the child." In re J. E., 745 A.2d 1250, 1254-55 (Pa. Super.
2000) (citations omitted.i The statute provides,
12
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
01 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)(l),(6), or (8), the
court shall not consider any efforts by the parent to remedy
the condition described therein which are first initiated
subsequent to the giving of notice of the filing of the petition.
In addition, the Superior Court has stated that, while "Section 2511 (b) does not explicitly
require a bonding analysis, [case law provides that] analysis of the emotional bond, if any, between
a parent and a child is a factor to be considered in determining the developmental, physical and
emotional needs and welfare of the child under §2511 (b)." In the Mauer of K.K.R.-S., K.MR.,
K.A.R., 958 A.2d 529, 533 (Pa. Super 2008). The Superior Court has explained,
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 of
permanently severing the bond.
In re C. P., 901 A.2d S 16, 520 (Pa. Super. 2006)
We properly considered whether a bond exists between Mother and Children which, if
broken, would cause detriment to Children. We do not question that Mother loves Children.
However, Dr. Rosen's findings are particularly illuminating as to the lack of an emotional bond
between Mother and Children. Also, although she loves Children, for an unreasonable period of
time, Mother has failed to uphold her fundamental responsibility to take necessary action to
provide a safe anc stable home. "A parent's basic constitutional right to the custody arid rearing
of his or her 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
13
environment." In re JA.S., 8201 A.2d 774, 782 (Pa. Super. 2003). Further, "[b]onding cannot be
in one direction only-that of child to parent-but must exhibit a bilateral relationship which
emanates from the parents' willingness to learn appropriate parenting, anger management, drug
rehabilitation and marital stability." in the Matter of K.K.R.-S., K.MR., K.A.R., 958 A.2d 529,
534 (Pa. Super 2008) citing In re Involuntary Termination of C. WS.M, 839 A.2d 410, 418-419
(Pa. Super. 2003). Even while the Children were in placement and a reunification plan set in
piace, the Mother failed to meet basic objectives established to enable her to address her
psychological problems and ensure that she provided a safe and stable home.
In deciding the issue of the best interest of a child, the Superior Court has noted that it is
essential to allow a child "a chance to have [his or her] fundamental needs met without the
constant insecurity that comes with knowing that someday, perhaps in the unreasonably distant
future, [they] might again be wrenched away from [their] committed and capable caregiver." In
re NC. 763 A.2d 913, 919 (Pa. Super. 2000). The record reflects that the needs and welfare of
Children have been and are being met in the foster home. The foster parents demonstrate
devotion and commitment to nurturing Children and ensuring their happiness and well-being.
The family has conscientiously provided stability and love. Disrupting the Children's lives
would be contrary to their best interests.
FATHER
The record further demonstrates that for an unreasonable period of time, Father failed to meet
service objectives essential to Children's well-being.
We do not make this finding solely upon the basis of Father's incarceration. We recognize
that "[a]lthough incarceration will certainly impact a parent's capability of performing parental
14
duties, and may render a parent incapable of performing parental duties under subsection (a)(2),
incarceration alone is not sufficient to support termination under any subsection." In re I. G., 93 9
A.2d 950 (2007). However, "where the parent does not exercise reasonable firmness in
'declining to yield to obstacles' his [parental] rights may be forfeited." In re A.L.D., 797 A.2d
326 (2002). Our Superior Court has found compelling a parent's failure to remain out of jail
where parental rights are at risk. See, In re : CS., 761 A.2d l 197 (2000)(Termination upheld
where, "even for the sake of the child, father could not stay out of jail.").
Here, Father failed to remain out of prison following release, but rather, incurred additional
charges as a result of a violent confrontation with Mother. His re-incarceration renders him
unavailable to Children for a number of years and unable to complete essential objectives to
properly parent.
Finally, although Father has written letters to Children while incarcerated, the record is devoid
of evidence of a bond between Father and Children. For the same reasons we set forth above, we
conclude that Children must not be wrested from the loving family with whom they have
bonded.
For all of the foregoing reasons the Decrees of Termination should be affirmed.
BY THE COURT:
J~~
August 31, 2016
15