In The Interest of: N.J., A Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: B.P., MOTHER :
:
:
:
:
: No. 3086 EDA 2018
Appeal from the Decree Entered, September 19, 2018,
in the Court of Common Pleas of Philadelphia County,
Domestic Relations at No(s): CP-51-DP-1000097-2016.
IN THE INTEREST OF: N.M.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: B.M.P., MOTHER :
:
:
:
: No. 3093 EDA 2018
Appeal from the Decree Entered, September 19, 2018,
in the Court of Common Pleas of Philadelphia County,
Domestic Relations at No(s): CP-51-AP-0000470-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 04, 2019
In this matter, B.M.P. (Mother) appeals the decree terminating her
parental rights to her nearly 3-year-old daughter N.M.J., pursuant to the
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* Retired Senior Judge assigned to the Superior Court.
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Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8) and (b). 1, 2 After
review, we affirm.
Child came to the attention of the Philadelphia Department of Human
Services (DHS) when Mother and Child tested positive for marijuana and
cocaine during Child’s birth in October 2015. Mother was unable to care for
Child, who was removed from her parents’ care and placed in the home of
Child’s maternal cousin. Child never lived with her parents for any extended
period of time. Mother continued to test positive for illicit drugs, which led to
the Child’s dependency adjudication in July 2016.
The juvenile court ordered Mother to seek drug treatment, participate
in random drug screens, and visit Child. The court further ordered her to
obtain appropriate housing and complete a parenting program. Mother never
complied with the court-sanctioned reunification plan during the course of the
dependency proceedings.
In April 2017, DHS filed a petition to terminate Mother’s rights. The
orphans’ court conducted a termination hearing on September 19, 2018 and
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1 The court also terminated parental rights of L.J. (Father). Although his
appeal is before this panel, it is not consolidated with this matter. See 3044
EDA 2018; 3045 EDA 2018.
2 D.P. (Maternal Grandmother) also sought to join this matter. For reasons
we set forth below, we grant the joint application filed by DHS and Child and
strike Maternal Grandmother from this appeal.
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granted the petition.3 Mother filed this timely appeal. She presents two
questions for our review:
1. Whether the orphans’ court erred by terminating the
parental rights of Mother under 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8)?
2. Whether the orphans’ court erred by finding, under 23
Pa.C.S.A. § 2511(b), that termination of Mother’s
parental rights best serves Child’s developmental,
physical and emotional needs and welfare?
See Mother’s Brief at 5.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of
the trial court if they are supported by the record. In re:
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
are supported, appellate courts review to determine if the
trial court made an error of law or abused its discretion. Id.;
R.I.S., 36 A.3d 567, 572 (Pa. 2011) (plurality opinion). As
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3 We note that the Child was properly represented under 23 Pa.C.S.A. §
2313(a). In her concise statement to the orphans’ court, Mother alleged that
the court erred by vacating Child’s legal counsel appointment, which was
originally made to ensure Child’s legal interests were properly represented.
See, e.g., In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). At the
beginning of the hearing, Child’s guardian ad litem advised the court that
Child, who was nearly three years old, was pre-verbal and too young to
articulate a preferred outcome. See In re T.S., 192 A.3d 1080 (Pa. 2018).
Child’s legal counsel concurred with the guardian’s assessment. In its Rule
1925 opinion, the court explained that no separate legal counsel appointment
was necessary pursuant to § 2313(a) and In re T.S. Notably, Mother does
not raise the issue in her brief; although this issue cannot be waived, we
nevertheless agree with the lower court’s conclusion.
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has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett v. Kia
Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.As [the Supreme Court] discussed in R.J.T., there are clear
reasons for applying an abuse of discretion standard of
review in these cases. [U]nlike trial courts, appellate courts
are not equipped to make the fact-specific determinations
on a cold record, where the trial judges are observing the
parties during the relevant hearing and often presiding over
numerous other hearings regarding the child and parents.
R.J.T., 9 A.3d at 1190. Therefore, even where the facts
could support an opposite result, as is often the case in
dependency and termination cases, an appellate court must
resist the urge to second guess the trial court and impose
its own credibility determinations and judgment; instead we
must defer to the trial judges so long as the factual findings
are supported by the record and the court's legal
conclusions are not the result of an error of law or an abuse
of discretion. In re Adoption of Atencio, 650 A.2d 1064,
1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[t]he standard of clear and convincing evidence is defined
as testimony that is so “clear, direct, weighty and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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This Court may affirm the trial court’s termination of parental rights
based on any one subsection of section 2511(a). See In re B.L.W., 843 A.2d
380, 384 (Pa. Super. 2004) (en banc). Sections 2511(a)(2) and (b) provide,
in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the
following grounds:
***
(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
[her] physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
***
(b) Other considerations.--The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
Instantly, Mother’s first issue concerns the first prong of the termination
analysis. We address the court’s determination that DHS met its burden under
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§ 2511(a)(2), namely that Mother’s drug addiction rendered her incapable of
parenting.
The Supreme Court has addressed parental incapacity under §
2511(a)(2) as follows:
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based
upon parental incapacity. The legislature, however, in
enacting the 1970 Adoption Act, concluded that a parent
who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties.
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986) (quoting
In re William L., 383 A.2d 1228, 1239 (Pa. 1978).
In re Adoption of S.P., 47 A.3d at 827.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A parent’s
vow to cooperate, after a long period of uncooperativeness regarding the
necessity or availability of services, may properly be rejected as untimely or
disingenuous. Id. at 340.
Here, Mother cites her own testimony to conclude that she made
sufficient progress on her reunification goals, that DHS failed to meet its
burden, and that the court’s findings to the contrary equated an abuse of
discretion. See Mother’s Brief at 11-13. We conclude that the record supports
the orphans’ court decision to terminate Mother’s rights.
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Mother had a long history of substance abuse. Two other children were
previously removed from her care because of her addiction. During Child’s
dependency case, Mother participated in five drug treatment programs, but
she never successfully completed any of them. See N.T., 9/19/18, at 212-
214. Other than two screens in May 2016, which were positive for cocaine,
marijuana, and alcohol, Mother did not attend court-ordered drug screens.
See DHS Exhibit 5; N.T. at 28-30.
Mother claims to have satisfied her parenting goal, because she received
a certificate for attending a requisite parenting class. See Mother’s Exhibit at
1. Yet, she ignores the fact that she could not be trusted to care for Child
outside of supervised visitation due to her substance abuse. Moreover, Mother
attended only about half of the visits offered to her. See N.T. at 14; 34; 130;
187; see also Footnote 4, infra. Of those she attended, Mother arrived late
and often left early. Id., at 36.
Mother disputes the court’s determination that she failed to meet her
housing goal, because she lived with her sister. Here, the record also supports
the court’s conclusion. But even if Mother achieved stable housing, Mother’s
inability to achieve sobriety or to visit Child for any significant length of time
prevented the court from ordering further reunification. The court did not
abuse its discretion when it concluded Mother was incapable of parenting
Child. Mother’s first issue is without merit.
Having concluded that the court properly applied the first prong of the
termination analysis, we turn now to the second prong under section 2511(b),
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which is the subject of Mother’s second appellate issue. Mother argues that
because Child is bonded to her, the termination of the relationship does not
best serve the Child’s needs and welfare. See Mother’s Brief at 16-18.
This Court has stated that the initial focus of a termination analysis is
on the parent, but the second prong focuses on the child. See In re Adoption
of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the
evidence in support of termination under section 2511(b), our Supreme Court
has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
this Court held that the determination of the child's “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances...where direct
observation of the interaction between the parent and the child is not
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necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are also a relevant part of this analysis.
See In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court
may emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at
763 (affirming involuntary termination of parental rights, despite existence of
some bond, where placement with mother would be contrary to child’s best
interests). “[A] parent's basic constitutional right to the custody and rearing
of ... her child is converted, upon the failure to fulfill ... her parental duties, to
the child’s right to have proper parenting and fulfillment of [the child's]
potential in a permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d
847, 856 (Pa. Super. 2004) (internal citations omitted).
Instantly, two DHS caseworkers and two visitation coaches testified at
the hearing. Mother relies exclusively on the favorable testimony from the
visitation coaches, while ignoring the DHS caseworkers’ testimony entirely.
The first visitation coach on Mother’s case was Richard Collins. Mr.
Collins concluded that, although Mother only attended less than a third of her
offered visits, the parental bond was surprisingly strong. Id. at 179. He
testified that the two act “like there’s no missed time, no time lost between
them.” Id.
The other visitation coach was Raymond Nichols. He testified that he
supervised about 14, two-hour visits between Mother and Child over the
course of the final three months of the dependency case. Visitation Coach
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Nichols testified that the parental bond between Mother and Child was “one
hundred percent great.” See N.T. at 187. In fact, the witness testified that
he has never seen such preparation on the part of the parent:
[The parents] set up the room before the child comes in.
They know specifically what toys [Child] uses. They know
what she eats. They know everything. Like their whole visit
is set up like they have a time where their [sic] eating. They
have a time where they’re learning. They have a time when
they’re playing. They have a time when they’re getting
ready, when they’re getting cleaned up, when they’re ready
to go. I’ve never done a visit where the parents already had
everything that they were going to do planned out prior to
even getting in the room.
Id. at 200.
Mr. Nichols also stated that the parents were asked to walk out with
Child to the car after the visit, because Child was upset when the visits ended.
Id. at 194. The witness concluded that Child would absolutely suffer
irreparable harm if the relationship was severed. Id. at 188.
In its Rule 1925(a) opinion, the orphans’ court did not address the
visitation coaches’ testimonies. However, the court explicitly noted that it
afforded greater weight to the testimony of the DHS’ caseworkers. There are
ample reasons why the court afforded the visitation coaches’ testimonies
limited credence.
Mr. Collins’ recommendation was not well-reasoned. He testified that
he did not consider Mother’s illicit drug use and her inpatient addiction
treatment to be worthwhile reasons to forbid unsupervised visitations. Id. at
183-184. On the other hand, Mr. Nichols did not seem to grasp the concept
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of irreparable harm. He testified: “Irreparable harm meaning not physical,
but would it (sic) emotionally damage the child or would it – you know – sway
her to do anything bad or anything like that.” See id. at 189. Although Mr.
Nichols had first-hand experience, having been a child whose own parents had
their rights terminated, he had no formal education regarding social work,
child development, or the like. His degree was in funeral directing. Id. at
190. Moreover, Mr. Nichols did not know who actually cared for Child, nor did
he observe an interaction between the Child and the foster parent. Indeed,
neither visitation coach could give an opinion about their bond.
Meanwhile, the DHS caseworkers gave a largely contradictory account.
Caseworker Nakeya Plunkett, who had the case first, testified that Mother was
offered approximately one hundred total visits during the pendency of the
case. Of those, it appears Mother attended fewer than half.4
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4 To this Court’s frustration, neither the witnesses nor the orphans’ court could
state precisely how many visits Mother was offered, nor how many she
attended. Nevertheless, we can glean from the record the following
arithmetic:
Caseworker Plunkett testified that Mother was offered approximately 100
visits during the entire pendency of the case. The supervised visits were
weekly and were scheduled for two hours. Caseworker Plunkett testified that
Mother attended about 12-15 visits during her time on the case, which was
from September 2016 until October or November 2017. See N.T. at 34; 14.
Caseworker Kenisha White took over immediately after Caseworker Plunkett
left. Caseworker White did not give an actual figure, but she did testify that
she attended three visits and that there was a four month gap between visits
from March 2018 to July 2018. See id. at 130.
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When Mother did come to a visit, Caseworker Plunkett testified that
Mother often came late and left early. Id. at 36. Sometimes Mother confirmed
her attendance, only to not show up at all. Id. at 37-38. Caseworker Plunkett
testified that Mother played with Child for a while, but then became more
interested in her phone. Id. at 36. Caseworker Plunkett testified that when
Child became fussy, Mother did not know how to calm her down or engage
her in play. Id. Caseworker Kenisha White, who took over for Caseworker
Plunkett, testified that she only observed Mother attend three visits. Because
Mother arrived late and left early, Caseworker White testified that she
probably saw only about 25 minutes of interaction between Mother and Child.
See id. at 146.
Notwithstanding the competing accounts, the court was within its
discretion when it ruled that DHS met the heightened burden when
demonstrating that termination was in Child’s best interests. We observe that
the orphans’ court is free to believe all, part, or none of the evidence presented
and is likewise free to make all credibility determinations and resolve conflicts
in the evidence. In Interest of D.F., 165 A.3d 960, 966 (Pa. Super. 2017)
(citation omitted).
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Visitation Coach Collins worked on Mother’s case from April 2017 to April 2018.
He surmised that Mother attended “30%” of her visits. Id., at 179. Visitation
Coach Nichols testified that he was assigned to Mother’s case in April 2018,
and that Mother attended 14 visits between July 2018 and the termination in
September 2018. Id. at 187.
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For one, the visitation coaches’ assumptions about the parent-child bond
were entirely superficial, and the court acted within its discretion to discount
them. The coaches witnessed a happy toddler eat snacks and play with toys
with an attentive adult. Mr. Collins testified that when Mother disappeared
and reappeared, the Child resumed interacting with her like no time had been
lost.
Significantly, the question is not whether Child and Mother have a bond,
but whether that bond is worth preserving. While a parent's emotional bond
with his or her child is a major aspect of the subsection 2511(b) best-interest
analysis, it is nonetheless only one of many factors to be considered by the
trial court when determining what is in the best interest of the child. In re
A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citing In re K.K.R.–S., 958 A.2d
529, 535–536 (Pa.Super.2008). The mere existence of an emotional bond
does not preclude the termination of parental rights. Id., 93 A.3d at 897-898;
see also In re T.D., 949 A.2d 910 (Pa. Super. 2008) (trial court's decision to
terminate parents' parental rights was affirmed where court balanced strong
emotional bond against parents' inability to serve needs of child). Rather, the
trial court must examine the status of the bond to determine whether its
termination “would destroy an existing, necessary and beneficial relationship.”
Id. at 898 (citation omitted).
Child resided with the same foster parent, the only caregiver she ever
knew. Caseworker White testified that Child is “well-bonded” to the foster
parent, that it is evident that they care for each other, that it is the foster
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parent who attends to her daily needs. Id. at 121-122. For instance, Mother
had attended only one of Child’s medical appointments. Id. at 123.
Since being removed from Mother’s care in 2015, Child has not lived
with Mother, because Mother’s drug addiction necessarily rendered any
potential care to be unsafe. Mother’s inability to achieve sobriety prevented
her from affording Child necessary security and stability, which in turn
prevented the creation of a worthwhile parental bond. And while Mother
appeared to have been attentive during the final visits, there is no question
that only the foster parent provided Child those intangibles essential for her
proper development. We conclude that the court did not abuse its discretion
by ruling that DHS met its burden under the second prong of the termination
analysis. Mother’s final issue is without merit.
Finally, we observe that Maternal Grandmother, D.P., evidently joined
this appeal and submitted a brief. DHS filed with this Court an application to
strike Maternal Grandmother from the matter.
Maternal Grandmother’s brief does not include a question involved, but
we gather from her argument that she believes she was entitled to a custody
hearing under 23 Pa.C.S.A. § 5324(3)(iii)(B) (“Standing for any form of
physical custody or legal custody”), because she was a grandparent of a
dependent child who was substantially at risk due to parental neglect.
Although such a question causes some pause, we must nevertheless grant the
application to strike and dismiss Maternal Grandmother’s appeal.
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Although Child was born in 2015, Maternal Grandmother did not petition
the family court to intervene in the dependency matter until 2018. Maternal
Grandmother’s petition was denied in March 2018, as was her petition for
reconsideration in June 2018. On August 16, 2018, the court granted Maternal
Grandmother leave to appeal nunc pro tunc. That appeal was docketed at
2724 EDA 2018. In November 2018, the Superior Court issued a per curium
order dismissing Maternal Grandmother’s appeal for failure to comply with the
Rules of Appellate Procedure.
While it does not appear to be the case, we cannot resolve whether
Maternal Grandmother satisfied § 5324(3)(i) of the Custody Act to warrant a
hearing on standing.5 Having been the subject of her previously dismissed
appeal, the issue is now settled. Maternal Grandmother cannot simply revive
the matter by joining the instant appeal.
Decree affirmed. Application to strike granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/19
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5 Section 5324(3)(i) provides that a grandparent may file a custody action if,
inter alia, the grandparent-child relationship began either with the consent
of a parent or under a court order. See 23 Pa.C.S.A. § 5324(3)(i).
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