In The Int. of: Z.S v. Appeal of: D.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.V., A : IN THE SUPERIOR COURT OF
MINOR A/K/A Z.S.V. : PENNSYLVANIA
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APPEAL OF: D.S., MOTHER : No. 3659 EDA 2017
Appeal from the Orders October 4, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000552-2016,
CP-51-DP-0001269-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 18, 2018
Appellant, D.S. (“Mother”), appeals from the orders entered in the
Philadelphia County Court of Common Pleas, which reaffirmed the court’s prior
decree terminating Mother’s parental rights to her minor child, Z.V. a/k/a
Z.S.V. (“Child”) (born November 2008), and the court’s prior order changing
Child’s permanency goal to adoption. We affirm.
A prior opinion of this Court sets forth the relevant facts and procedural
history of this case as follows:
On May 10, 2015, [the Department of Human Services
(“DHS”)] obtained an order of protective custody (“OPC”)
regarding Child based on reports that Mother repeatedly hit
Child with different implements. Following a shelter care
hearing, the trial court granted DHS legal and physical
custody over Child. Child was initially placed with Child’s
maternal grandmother.
On May 15, 2015, DHS filed a dependency petition regarding
Child. DHS asserted aggravated circumstances, namely,
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the involuntary termination of Mother’s parental rights to
Child’s sibling. On May 27, 2015, the trial court adjudicated
Child dependent and set a permanent placement plan of
“return to guardian.” The court referred Mother to the
Clinical Evaluation Unit for a drug screen and a dual
diagnosis assessment.
On July 29, 2015, following a permanency review hearing,
the trial court entered an order indicating Mother did not
meet the criteria for substance abuse intervention. The
court referred Mother to Behavioral Health Systems for a
consultation or evaluation and directed the Community
Umbrella Agency (“CUA”) to refer Mother to anger
management counseling. The court directed that Child be
placed in foster kinship care with Child’s maternal aunt.
On December 16, 2015, the trial court convened a
permanency review hearing. At the beginning of the
hearing, DHS’s counsel indicated that a ruling on DHS’s
allegations of aggravated circumstances had been deferred.
DHS entered copies of a September 29, 2004 order
involuntarily terminating Mother’s parental rights to Child’s
sibling into the record. DHS’s counsel requested that DHS
make no reasonable efforts toward reunification. Following
arguments by Mother’s counsel, the court directed that “no
reasonable efforts are needed.”
DHS presented additional testimony from Child’s CUA case
manager, who indicated that visitation had been suspended
based on the recommendation of Child’s therapist. Mother’s
counsel objected suggesting that DHS did not present
evidence of a grave threat to Child. In response, DHS
presented the case manager’s testimony that Child reported
(1) her sibling sexually abused her when Child and sibling
were in Mother’s care, (2) Mother and Child’s sibling taught
Child sexual behaviors, and (3) Child placed a firearm
against her own head because her Mother told Child she was
“bad.” DHS’s counsel indicated that child protective services
reports were made in September, and the matter was “being
investigated.” Moreover, DHS’s counsel averred, “I believe
[the reports] have been substantiated.” The court
determined that visitation with Mother constituted a grave
threat to Child and ordered visitation be permanently
suspended unless it occurred in a therapeutic setting.
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Following the December 16, 2015 hearing, the trial court
entered a permanency review order memorializing its
suspension of visitation. However, the court did not change
the permanent placement plan of reunification.
Additionally, the court directed that CUA refer Mother for a
parenting capacity evaluation and that Mother continue with
therapy. The court scheduled a permanency review hearing
for March 2016.
The trial court also entered a separate aggravated
circumstances order finding the existence of aggravated
circumstances and directing the cessation of efforts “to
preserve the family and reunify [Child and Mother].” In that
order, the court directed that a hearing be held within thirty
days.
A hearing was not held within thirty days of the trial court’s
aggravated circumstances order, and the matter proceeded
to a permanency review hearing held on March 16, 2016,
before a new presiding judge. During the witness’s
testimony, the court interceded and the following exchange
occurred:
THE COURT: So let me just say this. Given that on
December 16, 2015[, the prior judge] made the
finding, no efforts are to be made to preserve the
family, reunify [Child] with [Mother] we don’t have to
go through objectives on [Mother] and where she is
and everything like that because that’s the court
order. So there was no appeal taken of that
December 16th order and therefore that stands. So I
don’t need any objectives put on the record as to
[Mother] because the [c]ourt has already made a
finding that there are to be no efforts to reunify.
[Mother’s counsel]: Your Honor, just one
clarification note. Your Honor is in agreement that
[M]other can still make her own efforts, isn’t that
correct?
THE COURT: I don’t know what that looks like
because right now she doesn’t have visits because
they’ve been suspended at the recommendation of the
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therapist. And [the CUA case manager] just testified
that that is still the recommendation of the therapist,
no contact, no visits.
[Mother’s counsel]: But, Your Honor, there’s much
more thorough recommendations in the report, that I
think you were just handed, from [the Children’s Crisis
Treatment Center (“CCTC”)].
THE COURT: Okay.
[Mother’s counsel]: You know, in terms of
reasonable efforts even if the department has no
affirmative obligation the parent’s rights are not
terminated yet and she has the right to make her own
efforts.
THE COURT: Well considering that the order was
made that there are no efforts to be made as to
reunification, reunification is no longer the
permanency goal. The permanency goal for [Child]
now goes to either adoption or [permanent legal
custody (“PLC”)].
[Mother's counsel]: Your Honor, that goal was not
changed and we didn’t have a goal change hearing for
that.
THE COURT: Well I’m changing the goal because
essentially it was already done at the last court date.
If [Mother] doesn’t have to work on objectives and the
[c]ourt has already said very clearly on December 16th
that no efforts are to be made to preserve the family
and reunify [Child] with [Mother], then essentially
there is no reunification goal. The goal is adoption or
PLC, whichever is appropriate in this case. And it
really would be adoption because of the age of the
child. So with that in mind—that decision was made
before I got here.
[Mother's counsel]: So you[’re] ordering that the
goal is changed to adoption today?
THE COURT: The goal has—even though [the prior
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judge] did not make the goal change. Given his order,
reunification is not a viable option. So therefore today
I’m making the order that the goal is now adoption for
[Child] based on his previous ruling. He took
testimony. He made that decision and so therefore,
based on that, we don’t have to get into objectives or
anything like that. The goal is adoption.
[Mother’s counsel]: Your Honor, please note my
objection.
Following the March 16, 2016 hearing, the trial court
entered [a] permanency review order. The order indicated
that the permanent placement goal was “return to parent or
guardian” and added a concurrent placement plan of
adoption. The court further directed:
THE DHS GOAL IS CHANGED TO ADOPTION. THE
CURRENT COURT GOAL IS REUNIFICATION UNTIL
PETITIONS ARE FILED. A meeting among the parties
is to occur within 30 days to discuss the appropriate
goal. Reunification has been ruled [out] as to
[Mother] as a viable goal.
Mother timely appealed from the March 16, 2016 order….
In Interest of Z.V., 158 A.3d 665, 666-68 (Pa.Super. 2018) (internal
footnotes and citations to record omitted).
While Mother’s appeal from the March 16, 2016 order was pending, on
June 16, 2016, DHS filed a petition to terminate Mother’s parental rights to
Child at Docket No. AP-0000552-2016, and a petition to change Child’s
permanency goal to adoption at Docket No. DP-0001269-2015. Additionally,
on October 18, 2016, the court entered against Mother a stay-away order
prohibiting Mother from contacting Child’s foster mother, Mother’s aunt, based
upon reports Mother had repeatedly harassed Child’s foster mother over the
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phone.
On January 4, 2017, the trial court conducted a hearing on DHS’
termination and goal change petitions, during which the court heard testimony
from Child’s CCTC therapist, Child’s CUA case manager, Mother, and Child’s
foster mother.
Child’s therapist, on behalf of DHS, testified and explained she had been
Child’s trauma focus therapist since July 2015, after a social worker referred
Child to therapy in light of reports Mother had physically abused Child. In
September 2015, Child disclosed to her foster mother and a caseworker that
her older brother sexually assaulted her numerous times when both children
were in Mother’s care. Also in September 2015, Child’s therapist
recommended suspension of Mother’s supervised visits with Child because:
Mother had encouraged Child to make false allegations of mistreatment by
foster mother and told Child not to follow her foster mother’s directions; Child
feared Mother would hit her if she did not follow Mother’s instructions; and
Child exhibited increased behavioral problems following Mother’s visits. In
meetings with the case manager, Mother failed to acknowledge she caused
Child trauma, disbelieved Child had been sexually abused, and described Child
as a liar and a manipulator. Since February 2016, Mother failed to attend any
caregiver sessions with Child’s therapist and had attended less than three
throughout Child’s treatment. When Child’s therapist began counseling with
Child, Child exhibited several trauma symptoms, including, inter alia: trouble
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sleeping, nightmares, nighttime enuresis, dishonesty, physical aggression,
inability to focus, and suicidal ideation. Child’s therapist diagnosed Child with
post-traumatic stress disorder (“PTSD”) and attention-deficit/hyperactivity
disorder (“ADHD”). As of January 2017, Child had progressed with therapy
and the severity of her symptoms had diminished, but Child’s therapist
maintained the recommendation that Mother should not visit with Child.
Child’s therapist explained Child needs a stable and consistent caregiver,
which role the therapist opined Mother was unable to fulfill. Child’s therapist
also indicated Child has a good relationship with her foster mother; foster
mother supports Child’s recovery and Child loves foster mother. (See N.T.
Termination/Goal Change Hearing, 1/4/17, at 20-37).
A CUA case manager, who became involved with Child’s case in July
2016, also testified on behalf of DHS. The CUA case manager reiterated that
during visitation, Mother coached Child to make false allegations against
Child’s foster mother, and Child’s behavior deteriorated after Mother’s visits.
CUA developed for Mother single case plan (“SCP”) objectives, which included,
inter alia: undergoing anger management counseling; completing part two of
a parenting capacity evaluation; and participating in mental health treatment,
including complying with a mental health medication management program.
Mother failed to provide CUA with documentation of her anger management
treatment and mental health treatment. Mental health treatment reports CUA
obtained from Mother’s provider indicated Mother had attended one treatment
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session each in June and October 2016, but she had not attended sessions
between June and October 2016, or after October 2016. While Child was in
foster mother’s care, Mother had made threatening phone calls and sent
threatening text messages to foster mother. Additionally, at a meeting about
Child’s placement, Mother commented she wanted to punch the case
manager’s supervisor. The CUA case manager had observed Child with her
foster mother, to whom Child had bonded. Child and her foster mother have
a good, caring relationship, and Child looks to her foster mother for daily
support, parental guidance, and love. The CUA case manager opined
termination of Mother’s parental rights to Child is in Child’s best interest,
because: Mother failed to complete her SCP objectives; Child is fearful of
Mother; and Child has improved overall since she has been in the care of foster
mother. The case manager added she believed Child would not suffer
irreparable harm if Mother’s parental rights to Child were terminated. (Id. at
48-65).
Additionally, Mother testified on her own behalf. Mother explained she
had last received mental health treatment from her original provider in
October 2016, when the counseling center had dismissed her from treatment
because it lacked resources. Mother added she had missed several therapy
appointments due to other medical issues and because her therapist had
repeatedly cancelled sessions. Mother claimed she had received mental health
treatment from two different therapists since October 2016. Mother said her
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original counseling center reinstated her treatment earlier on the day of the
termination hearing, and she attended a counseling session that same day.
Mother conceded she used corporal punishment to discipline Child, which
included hitting Child with a belt. Mother stated she originally sought social
services assistance to learn to better parent Child and discipline Child without
beating her. Mother also acknowledged two of her other children have been
in the care of Child’s foster mother. (Id. at 83-107).
Child’s foster mother, who is Child’s maternal great-aunt, also testified.
Foster mother has known Child since she was born, and at the time of the
January 4th hearing, Child had been in foster mother’s care for nearly two
years. Foster mother also had in her care two of Child’s older siblings. While
Child was in foster mother’s care, Mother had repeatedly threatened and
harassed foster mother over the phone. In one instance, Mother sent foster
mother approximately forty-one text messages at 2:00 a.m. accusing foster
mother and others of abusing Child. Foster mother and Mother had a good
relationship in the past; their relationship deteriorated only after foster mother
began to care for Child. On the day of the January 4th hearing, Mother and
foster mother communicated, and foster mother indicated she had a
“breakthrough” with Mother during their discussion. Foster mother requested
the court to lift the stay-away order against Mother to allow foster mother and
Mother attempt to reestablish a relationship in the interest of promoting a
healthy relationship between Child and Mother. (Id. at 114-123). On January
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4, 2017, the court entered a decree terminating Mother’s parental rights to
Child and an order changing Child’s permanency goal to adoption. That same
day, the court lifted the stay-away order against Mother.
With respect to Mother’s pending appeal, on January 24, 2017, in an
unpublished memorandum (republished on March 23, 2017), this Court
vacated the trial court’s March 16, 2016 goal change order and remanded for
a permanency review hearing. See In Interest of Z.V., supra.
Meanwhile, Mother filed a timely notice of appeal from the trial court’s
January 4, 2017 termination decree on February 3, 2017, which was docketed
at No. 522 EDA 2017. On February 23, 2017, Mother filed in this Court an
“Application for Remand,” requesting this Court to vacate the trial court’s
January 4, 2017 decree and remand for a permanency review hearing
consistent with this Court’s January 24, 2017 appellate directive. On March
31, 2017, this Court entered the following order in response to Mother’s
request for a remand:
The above-captioned appeal is hereby REMANDED to the
Philadelphia County Court of Common Pleas, and the
common pleas court is permitted to vacate its January 4,
2017 order in light of this Court’s decision in Superior Court
Docket No. 1211 EDA 2016.
Jurisdiction is RELINQUISHED.
(Order, filed March 31, 2017) (emphasis added). In other words, this Court
allowed the trial court to hold a permanency review hearing on remand as
directed and gave the court the discretion to vacate the January 4, 2017
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termination decree if the court determined the evidence so required. With
this Order, the appeal at No. 522 EDA 2017 ended.
On remand, the trial court conducted the permanency review hearing,
as directed, on October 4, 2017. Before the court heard testimony, Mother
made an oral motion for recusal, which the court denied. During the hearing,
the court limited the parties to presenting only that evidence which they could
have offered at the initial permanency review hearing on March 16, 2016. The
court heard the testimony of a CUA caseworker, on behalf of DHS, and Mother.
At the remand hearing, the CUA caseworker testified she had been
involved with Child’s case since May 2015. A letter from Child’s trauma
therapist dated March 15, 2016, in CUA’s records indicated the therapist had
recommended continued suspension of Mother’s visits with Child, because
Mother had inappropriate contact with Child during the visits and Child’s
behavior worsened after visits. The March 15th letter also indicated Child’s
therapist would consider recommending Mother’s visits with Child to resume,
but only after Mother had made progress in her own therapy and
acknowledged her role in causing Child’s trauma. CUA had requested Mother
to participate in caregiver sessions at CCTC, but nothing in CUA’s records
indicated Mother had attended any caregiver sessions. Further, as of March
2016, Mother had not completed her SCP objectives. (See N.T. Permanency
Review Hearing, 10/4/17, at 5-12).
Mother also testified at the remand hearing. Mother stated she had
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participated in anger management, mental health treatment, and parenting
classes through March 2016. Specifically, Mother said that, by March 2016,
she had received mental health treatment and anger management counseling
for approximately a year. Mother testified she signed necessary releases on
Child’s behalf and attempted to communicate with Child’s therapist. Mother
added she had participated in caregiver sessions, but stopped when the
therapist said she did not need to see Mother again. By March 2016, Mother
claimed she had completed part one of the parenting capacity evaluation, but
she had not completed part two. Mother said she acknowledged in therapy
that she had lost her temper with Child, was wrong to do so, and wished to
correct her behavior to reunite with Child. Mother provided to the court a
medication management report, but Mother had no documentation of her
ongoing participation in mental health treatment. (Id. at 14-42).
Following the permanency review hearing on remand, on October 4,
2017, the court entered identical orders at both docket numbers to let stand
its prior January 4, 2017 termination decree and goal change order. On
November 3, 2017, Mother timely filed at both docket numbers notices of
appeal and contemporaneous statements of errors complained of on appeal
per Pa.R.A.P. 1925(a)(2)(i).
Mother raises the following issues for our review:
DID THE [TRIAL] COURT FAIL TO COMPLY WITH THE
SUPERIOR COURT’S ORDER OF MARCH 31, 2017?
DID THE [TRIAL] COURT FAIL TO COMPLY WITH THE
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SUPERIOR COURT’S REMAND DECISION OF JANUARY 24,
2017 BY…CONDUCT[ING] ONLY A “SNAPSHOT” HEARING
AND NOT A FULL PERMANENCY REVIEW HEARING UNDER
THE [PENNSYLVANIA] JUVENILE ACT, 42 PA.C.S.A. § 6301,
ET SEQ.?
DID THE [TRIAL] COURT[’S] OCTOBER 4, 2017 ORDERS
LETTING STAND ITS JANUARY 4, 2017 PRIOR ORDERS
CHANGING…CHILD’S PERMANENCY GOAL TO ADOPTION
AND TERMINATING [MOTHER]’S PARENTAL RIGHTS DENY
MOTHER AND CHILD DUE PROCESS?
(Mother’s Brief at 4-5).1
In her issues combined, Mother argues the trial court failed to comply
with this Court’s March 31, 2017 remand order, when the court chose not to
vacate its January 4, 2017 termination decree before holding the permanency
review hearing on remand. Mother insists the trial court incorrectly
interpreted this Court’s decision when it limited the parties at the remand
hearing to presenting only the evidence they could have introduced at the
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1 Mother includes in her statement of questions presented numerous
subheadings, which she failed to support with discussion in the argument
section of her brief. For example, Mother’s brief contains no argument on the
following claims: (1) the trial court lacked jurisdiction to hold the October 4,
2017 hearing without first vacating its January 4, 2017 order terminating
Mother’s parental rights, because more than 30 days had elapsed since
January 4, 2017 order; (2) the October 4, 2017 hearing did not constitute a
permanency review hearing under 42 Pa.C.S.A. § 6351; and (3) the trial court
determined Mother was merely a witness for purposes of the October 4, 2017
hearing, because the court had previously terminated Mother’s parental rights
to Child. Accordingly, we give these claims no consideration. See Butler v.
Illes 747 A.2d 943 (Pa.Super. 2000) (providing where appellant fails to raise
or develop her issues on appeal properly, or where her brief is wholly
inadequate to present specific issues for review, this Court can decline to
address appellant’s claims on merits); Pa.R.A.P. 2119(a).
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original March 16, 2016 permanency review hearing (“snapshot hearing”).
Specifically, Mother avers the trial court barred Mother from presenting at the
remand hearing more recent and contemporary information to refute
termination of Mother’s parental rights to Child. Mother also contends the
court improperly admitted hearsay evidence that did not meet the business
records exception to the hearsay rule.
Moreover, Mother complains the trial court abused its discretion when it
denied Mother’s recusal motion. Likewise, Mother asserts the evidence in this
case was insufficient to support the court’s decision to let stand its prior
January 4, 2017 decree terminating Mother’s parental rights to Child and its
prior order changing Child’s permanency goal to adoption. Mother concludes
this Court should vacate the trial court’s orders and remand for further
proceedings. We disagree.
As a preliminary matter, to preserve a claim of error for appellate
review, a party must make a specific objection to the alleged error before the
trial court in a timely fashion and at the appropriate stage of the proceedings;
failure to raise an objection results in waiver of the underlying issue on appeal.
In re J.A., 107 A.3d 799, 820 (Pa.Super. 2015). See also Cominsky v.
Donovan, 846 A.2d 1256, 1262 (Pa.Super. 2004) (stating: “[T]o preserve an
evidentiary objection, a party must make a timely and specific objection to
the admission or the exclusion of the evidence”). “Issues not raised in the
[trial] court are waived and cannot be raised for the first time on appeal.”
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Pa.R.A.P. 302(a).
Further, appellate briefs must conform in all material respects to the
briefing requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 (addressing
specific requirements of each subsection of brief on appeal). Regarding the
argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into
as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a). Importantly, where an appellant fails to raise or develop
her issues on appeal properly, or where her brief is wholly inadequate to
present specific issues for review, this Court can decline to address the
appellant’s claims on the merits. Butler, supra. See also Lackner v.
Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining arguments must adhere
to rules of appellate procedure and arguments which are not appropriately
developed are waived; arguments not appropriately developed include those
where party has failed to cite authority to support contention); Estate of
Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant must
support each question raised by discussion and analysis of pertinent authority;
absent reasoned discussion of relevant law in appellate brief, appellant
hampers this Court’s review and risks waiver).
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Additionally, an appellant’s failure to cite to the record and relevant
supporting authority constitutes waiver:
An appellate brief must provide citations to the record and
to any relevant supporting authority. The court will not
become the counsel for an appellant and will not, therefore,
consider issues which are not fully developed in [her] brief.
Failing to provide…citation to the record represents serious
deviations from the briefing requirements of the Rules of
Appellate Procedure. Because such an omission impedes on
our ability to address the issue on appeal, an issue that is
not properly briefed in this manner is considered waived.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (internal
citations and quotation marks omitted). See also Pa.R.A.P. 2119(c)
(providing: “If reference is made to the pleadings, evidence, charge, opinion
or order, or any other matter appearing in the record, the argument must set
forth, in immediate connection therewith, or in a footnote thereto, a reference
to the place in the record where the matter referred to appears…”).
Instantly, Mother raises her hearsay claim for the first time on appeal.
See Cominsky, supra. Further, in her brief, Mother fails to identify the
purportedly inadmissible hearsay the trial court allegedly admitted and does
not cite to the record to support her assertion. See Pa.R.A.P. 2119(c).
Therefore, Mother’s hearsay challenge is waived. See Gould, supra;Pa.R.A.P. 302(a). Additionally, Mother fails to cite to relevant authority to
support her recusal claim; the sole case Mother relies upon does not discuss
recusal. Instead, the case addresses the admission of prior convictions
evidence in a criminal case. Thus, Mother’s recusal claim is also waived. See
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Lackner, supra; Gould, supra.Regarding Mother’s remaining complaints, ordinarily, “where a case is
remanded to resolve a limited issue, only matters related to the issue on
remand may be appealed.” Commonwealth v. Lawson, 789 A.2d 252, 253
(Pa.Super. 2001). Nevertheless, there are instances where an appellate court
can address claims unrelated to the issue on remand. See Commonwealth
v. Chamberlain, 612 Pa. 107, 30 A.3d 381 (2011), certiorari denied, 566
U.S. 986, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012) (explaining Supreme
Court remanded case to trial court, recognizing that remand proceedings could
provide basis for appellant to seek relief; following remand, Supreme Court
considered additional claims from appellant). In light of the importance of the
rights involved, the complex procedural history of this case, and in all fairness
to Mother, we will address her complaints raised on appeal with respect to the
goal change and termination of her parental rights.
On appeal, goal change decisions are subject to an abuse of discretion
standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super. 2006).
In order to conclude that the trial court abused its
discretion, we must determine that the court’s
judgment was “manifestly unreasonable,” that the
court did not apply the law, or that the court’s action
was “a result of partiality, prejudice, bias or ill will,”
as shown by the record. We are bound by the trial
court’s findings of fact that have support in the record.
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 carrying out these responsibilities, the trial court is
free to believe all, part, or none of the evidence.
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When the trial court’s findings are supported by
competent evidence of record, we will affirm, “even if
the record could also support an opposite result.”
Id. at 822-23 (internal citations omitted).
The Juvenile Act controls the disposition of dependent children. In re
R.P., 957 A.2d 1205, 1217 (Pa.Super. 2008). Section 6351 provides in
relevant part:
§ 6351. Disposition of dependent child
* * *
(f) Matters to be determined at permanency
hearing.—At each permanency hearing, a court shall
determine all of the following:
(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.
* * *
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(9) If the child has been in placement for at
least 15 of the last 22 months or the court has
determined that aggravated circumstances exist
and that reasonable efforts to prevent or
eliminate the need to remove the child from the
child’s parent, guardian or custodian or to
preserve and reunify the family need not be
made or continue to be made, whether the
county agency has filed or sought to join a
petition to terminate parental rights and to
identify, recruit, process and approve a qualified
family to adopt the child unless:
(i) the child is being cared for by a relative
best suited to the physical, mental and
moral welfare of the child;
(ii) the county agency has documented a
compelling reason for determining that filing
a petition to terminate parental rights would
not serve the needs and welfare of the child;
or
(iii) the child’s family has not been provided
with necessary services to achieve the safe
return to the child’s parent, guardian or
custodian within the time frames set forth in
the permanency plan.
* * *
(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all
relevant evidence presented at the hearing, the court
shall determine one of the following:
(1) If and when the child will be returned to
the child’s parent, guardian or custodian in cases
where the return of the child is best suited to the
safety, protection and physical, mental and moral
welfare of the child.
(2) If and when the child will be placed for
adoption, and the county agency will file for
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termination of parental rights in cases where
return to the child’s parent, guardian or custodian
is not best suited to the safety, protection and
physical, mental and moral welfare of the child.
(3) If and when the child will be placed with a
legal custodian in cases where the return to the
child’s parent, guardian or custodian or being
placed for adoption is not best suited to the
safety, protection and physical, mental and moral
welfare of the child.
(4) If and when the child will be placed with a
fit and willing relative in cases where return to
the child’s parent, guardian or custodian, being
placed for adoption or being placed with a legal
custodian is not best suited to the safety,
protection and physical, mental and moral
welfare of the child.
* * *
(f.2) Evidence.—Evidence of conduct by the parent
that places the health, safety or welfare of the child at
risk, including evidence of the use of alcohol or a
controlled substance that places the health, safety or
welfare of the child at risk, shall be presented to the
court by the county agency or any other party at any
disposition or permanency hearing whether or not the
conduct was the basis for the determination of
dependency.
(g) Court order.—On the basis of the
determination made under subsection (f.1), the court
shall order the continuation, modification or
termination of placement or other disposition which is
best suited to the safety, protection and physical,
mental and moral welfare of the child.
42 Pa.C.S.A. § 6351(f), (f.1), (f.2), (g).
“When the child welfare agency has made reasonable efforts to return a
[dependent] child to [the child’s] biological parent, but those efforts have
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failed, then the agency must redirect its efforts towards placing the child in an
adoptive home.” In re N.C., supra at 823 (citing In re G.P.-R., 851 A.2d
967, 973 (Pa.Super. 2004)).
Although the agency has the burden to show a goal change
would serve the child’s best interests, “[s]afety,
permanency, and well-being of the child must take
precedence over all other considerations” under Section
6351. In re D.P., 972 A.2d 1221, 1227 (Pa.Super. 2009),
appeal denied, 601 Pa. 702, 973 A.2d 1007 (2009)
(emphasis in original); In re S.B., 943 A.2d 973, 978
(Pa.Super. 2008), appeal denied, 598 Pa. 782, 959 A.2d 320(2008). “[T]he parent’s rights are secondary” in a goal
change proceeding. In re D.P., supra.Because the focus is on the child’s best interests, a goal
change to adoption might be appropriate, even when a
parent substantially complies with a reunification plan. In
re N.C., supra at 826-27. Where a parent’s “skills,
including her judgment with regard to the emotional well-
being of her children, remain problematic[,]” a goal change
to adoption might be appropriate, regardless of the parent’s
compliance with a permanency plan. Id. at 825. The
agency is not required to offer services indefinitely, where a
parent is unable to properly apply the instruction provided.
In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002). See
also In re S.B., supra at 981 (giving priority to child’s
safety and stability, despite parent’s substantial compliance
with permanency plan); In re A.P., 728 A.2d 375, 379
(Pa.Super. 1999), appeal denied, 560 Pa. 693, 743 A.2d 912(1999) (holding where, despite willingness, parent cannot
meet “irreducible minimum parental responsibilities, the
needs of the child must prevail over the rights of the
parent”). Thus, even where the parent makes earnest
efforts, the “court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.” In re
Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006).
In re R.M.G., 997 A.2d 339, 347 (Pa.Super. 2010), appeal denied, 608 Pa.
648, 12 A.3d 372 (2010) (some internal citations and quotation marks
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omitted) (emphasis in original).
Appellate review of termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by the finder of fact. The burden of proof is
on the party seeking termination to establish by clear
and convincing evidence the existence of grounds for
doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
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(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165(2008)).
DHS filed a petition for the involuntary termination of Mother’s parental
rights to Child on the following grounds:
§ 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:
(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
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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.
* * *
(b) Other considerations.―The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). “Parental rights may be
involuntarily terminated where any one subsection of Section 2511(a) is
satisfied, along with consideration of the subsection 2511(b) provisions.” In
re Z.P., supra at 1117.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only
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if the court determines that the parent’s conduct warrants
termination of…her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under
the standard of best interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to the
filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for…her conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
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offered by the parent facing termination of…her parental
rights, to determine if the evidence, in light of the totality of
the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; to the contrary, those grounds may include
acts of refusal as well as incapacity to perform parental duties. In re A.L.D.,
797 A.2d 326 (Pa.Super. 2002). “Parents are required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.”
Id. at 340. The fundamental test in termination of parental rights under
Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa.
636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced
that under what is now Section 2511(a)(2), “the petitioner for involuntary
termination must prove (1) repeated and continued incapacity, abuse, neglect
or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child
to be without essential parental care, control or subsistence; and (3) that the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).
“Termination of parental rights under Section 2511(a)(5) requires that:
(1) the child has been removed from parental care for at least six months; (2)
the conditions which led to removal and placement of the child continue to
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exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” In re Z.P., supra at 1118.
“[T]o terminate parental rights pursuant to [Section] 2511(a)(8), the
following factors must be demonstrated: (1) [t]he child has been removed
from parental care for [twelve] months or more from the date of removal; (2)
the conditions which led to the removal or placement of the child continue to
exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76
(Pa.Super. 2003).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
Id. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship.
When conducting a bonding analysis, 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., supra at 1121 (internal citations omitted).
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“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 rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). This Court has said:
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, this [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.
Because a child needs more than a benefactor, parental duty
requires that a parent exert himself to take and maintain a
place of importance in the child’s life.
Parental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of…her ability, even in difficult circumstances. A
parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with his or her physical and
emotional needs.
In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic
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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.” Id. at 856.
Notably, neither Section 2511(a) nor Section 2511(b) requires a court
to consider at the termination stage, whether an agency provided a parent
with reasonable efforts aimed at reunifying the parent with her children prior
to the agency petitioning for termination of parental rights. In re D.C.D., 629
Pa. 325, 342, 105 A.3d 662, 672 (2014). An agency’s failure to provide
reasonable efforts to a parent does not prohibit the court from granting a
petition to terminate parental rights under Section 2511. Id. at 346, 105 A.3d
at 675.
Instantly, the plain language of this Court’s March 31, 2017 order belies
Mother’s claim that the trial court erred when it declined to vacate the court’s
prior January 4, 2017 termination decree before conducting the October 4,
2017 remand hearing. This Court’s order provided the trial court with the
discretion to vacate its prior orders but did not direct the trial court to do so.
The procedural posture of this case at the time of this Court’s March 31, 2017
order was an appeal from the goal change/termination order/decree of
January 4, 2017. With its March 31, 2017 order, this Court intended to abstain
from ruling on that appeal until after the trial court had conducted the
permanency review hearing previously ordered on remand and to give the trial
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court the option at that time to vacate its January 4, 2017 termination decree
if the court found the evidence warranted vacation. Therefore, the trial court
had the opportunity to rule again on termination. Upon remand, the trial court
simply declined to vacate its prior termination decree. See In re Z.P., supra;In re N.C., supra. Thus, Mother’s claim of error in this regard fails.
Additionally, Mother’s assertion the trial court improperly limited the
parties, at the October 4, 2017 permanency review hearing on remand, to
presenting only evidence the parties could have introduced at the original
permanency review hearing on March 16, 2016, also fails. The court’s decision
to restrict the evidence at the remand hearing put the parties in the same
respective positions they had occupied at the time of the original permanency
review hearing. Thus, the trial court did not err when it limited the parties’
evidence at the October 4, 2017 permanency review hearing. See In re Z.P.,
supra; In re N.C., supra. Therefore, Mother’s “snapshot” evidentiary claim
fails.
With respect to Mother’s termination of parental rights and goal change
claims, at the conclusion of the January 4, 2017 hearing, the court addressed
its decision to terminate Mother’s parental rights to Child and let stand its
previous goal change order, in part, as follows:
[W]e sit here at nineteen months and we have [a child] who
is fortunate to have landed in a place with someone familiar
because she’s there with [foster mother]. And then I come
to find out that [Child] has two older siblings and it sounds
like maybe one of the older siblings has a child now. And
so [foster mother] is taking care of a one-year-old.
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But really today needs to be about [Child] and really what’s
in [Child]’s best interests. It’s an unfortunate chain of
circumstances that have led us to this point. I don’t think
that anybody disputes that [Mother] initially sought help….
And that is commendable and indeed a strength.
However, during that time there was an incident that rose
to a level that that worker or workers had to report that
incident. That’s their responsibility as mandated reporters.
And even with that report that did not have to be the end of
it because once this matter was brought to court [Mother]
had every opportunity to cooperate and comply with those
[SCP] objectives. But one of the recurring themes that I
have heard and even today when [Mother] provided
testimony is that I really don’t think that [Mother] has
complete insight in the gravity of her actions when it comes
to a life of a child….
To talk about how [Mother] exhorted discipline, to have a
child cry after being physically spanked, to be hit with a belt
for a minute, as an adult that would be offensive. But when
you think of a [child] being exacted that type of punishment.
The way it resonates in a [child] is much different from an
adult. And what’s clear is [Child] still lives in the shadows
of what she’s seen or what she experienced in terms of
abuse.
Now we talked a lot about physical abuse, but the testimony
is does she suffer from medical neglect? Does she suffer
from sexual abuse of various persons? And at the end of
the day today [this] has to be about [Child].
What I have heard in terms of [Mother] gives me concern
and I don’t think that [Mother] has done what she needed
to do to ensure the return of her child. And what we see is
a recurring theme of [Mother] threatening people through
text messages, through comments, …those inappropriate
actions keep on surfacing.
So [Mother] is not where she needs to be to deal with [Child]
who has a traumatic history. Who has special needs that
have to be dealt with. And I think that was clear through
[Child’s trauma therapist]’s testimony.
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I find the testimony of the therapist…, [the CUA case
manager] who[’s] here today as a social worker, and [foster
mother] extremely credible. And I kind of feel that [Mother]
lacks insight as to her actions that happen[ed] then and
even as today through her testimony.
So with that in mind, with clear and convincing evidence this
[c]ourt will involuntarily terminate the rights of [Mother] as
to [Child].
The [c]ourt is making this ruling based on [23 Pa.C.S.A. §§]
2511[(a)(1), (a)(2), (a)(5), (a)(8),] and 2511[(b)],
considerations have been taken in. I do believe that [DHS]
has met their burden of proof.
I believe that it is absolutely in the best interest of [Child]
at this time for [Mother]’s parental rights to be terminated.
I believe that [Child] will not suffer any irreparable harm
because she has looked to [foster mother] to meet her day
to day needs for over a year and a half. I believe that the
fact that there were aggravated circumstances in this case
found by [a previous judge] and the fact…that he made the
order that reasonable efforts do not have to be made to
reunify [Mother]. … When I assumed the case that is the
disposition that was before the [c]ourt. And the [c]ourt
believes that that was appropriate in light of the totality of
the information taken in today.
I do believe that at this time that this matter should be
transferred to [the] Adoption Unit for further handling.
(N.T. Termination/Goal Change Hearing, 1/4/17, at 136-139). Additionally,
the court provided the following rationale, in relevant part, at the conclusion
of the October 4, 2017 remand hearing:
… The [SCP] objectives as I understand them [as of March
2016] w[ere] mental health anger management,
med[ication] management, [Mother]’s cooperation with
CUA and the parenting capacity evaluation and supervised
visits at that time had been suspended.
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In terms of [M]other’s level of compliance, in terms of
mental health, even given the opportunity, [M]other has not
provided treatment plans or progress reports that would
have been a part of the permanency testimony [as of March
2016]. I do have this note of [February 24], 2017, and it’s
very general saying that she was attending treatment,
[M]other, since [August 7], 2015. It does not indicate how
frequently she was to attend treatment, it does not say how
consistent she was with her treatment. It doesn’t say what
they were addressing in the context of her treatment, it’s
essentially not a treatment plan.
There is no indication that they were specially working on
anger management and to that extent I agree with [the
child advocate], given the circumstances that brought this
case into care where you have a mother that is setting forth
by her own admission, spanking, beating a child, I think that
anger management would have definitely be[en] one of the
primary concerns. I have no indication that [Mother] was
actively engaged in anger management services [as of
March 16,] 2016. So, at this point in time, [M]other’s level
was I would say at best minimally compliant.
Finally, there’s the issue of the CCTC treatment record or
the letter dated [March 15], 2016.
[The March 15th letter] clearly says at the end that CCTC is
recommending that visits between [Child] and [Mother]
continue to be suspended until [Mother] makes progress in
her own therapy, and until [Mother] is able to acknowledge
her role in [Child]’s trauma history, we’re sitting here today,
that still hasn’t been established.
* * *
On [March 16, 2016], we have no documentation to say that
[Mother] was actively engaged in treatment that could be
submitted to [Child’s trauma therapist] for reconsideration.
We don’t have—actually I have in this [March 15, 2016]
report, quite the contrary that [Mother] is indicating she
believes that [Child] is coached by [her foster mother], that
she believes that [Child] is a liar and a manipulator and
[Mother] takes very little ownership of anything that she
may have done that contributed to this matter coming forth.
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So I do not believe [as of March 16, 2016,] that [Mother]
had successfully or substantially addressed her goals so that
we can even consider reunification at that time. …
… [A]nd I submit to the parties here that based on the
evidence that was provided at the time of the involuntary
termination of parental rights [hearing] for [Child], that the
[c]ourt did not err in its ruling. That [M]other has not been
compliant, and that therefore the order will stand as to the
[in]voluntary termination. …
(N.T. Permanency Review Hearing, 10/4/17, at 54-57). The record in this
case tells a tragic story of continued neglect, abuse, and corruption of a small
child while in the care of a parent found to be a grave threat to the child. The
evidence showed that Mother’s continued presence in Child’s life is both
harmful and hostile to Child’s welfare. Child fears Mother and looks to foster
mother for daily support, parental guidance, and love. Thus, the record
supports the court’s orders confirming its prior decree terminating Mother’s
parental rights to Child and the prior order changing Child’s permanency goal
to adoption. See In re Z.P., supra; In re N.C., supra. Accordingly, we
affirm.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/18
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