Interest of: D.T. Appeal of: D.N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.T. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.N., NATURAL MOTHER
No. 2298 EDA 2014
Appeal from the Order Dated July 11, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000635-2013 CP-51-DP-0002521-2011
FID:51-FN-004746-2011
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 04, 2014
D.N. (Mother) appeals from the trial court’s order involuntarily
terminating her parental rights to her daughter, D.T. (born 7/2006). After
careful review, we affirm.
The Department of Human Services (DHS) removed D.T. from
Mother’s care on December 22, 2011, after receiving a report that Mother
had left then-five-year-old D.T. home alone. D.T. was immediately placed
into protective custody and has remained in foster care since that date.
Mother was subsequently charged with endangering the welfare of a child
and reckless endangerment of another person; a stay-away order was
entered for D.T. as a condition of Mother’s bail. On January 18, 2012, D.T.
was adjudicated dependent and committed to the care of DHS.
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DHS prepared a Family Service Plan (FSP), listing the following
objectives for Mother: participate in drug and alcohol assessment;
participate in mental health evaluation; sign authorizations for DHS to obtain
copies of her providers’ records and reports; complete a parenting capacity
evaluation; participate in anger management classes; participate in family
therapy when recommended by a therapist; obtain and maintain suitable
housing; and attend all scheduled visits with D.T. At Mother’s first
permanency review hearing in April 2012, she was found to be in moderate
compliance with her FSP objectives. At her next two permanency reviews in
July and October 2012, Mother was found to be in full compliance with the
FSP and was granted unsupervised community day weekend visits with D.T.
However, in December 2012, the visits reverted to supervised contact after
D.T. reported that Mother was “getting high” at visits.
In May 2013, after consistently attending drug and alcohol treatment,
the court found that Mother was in moderate compliance with her FSP
objectives. However, Mother was referred for a parenting capacity
evaluation. At the next meeting on June 6, 2013, Mother’s permanency goal
was changed to adoption. On October 1, 2013, DHS filed a petition to
terminate Mother’s parental rights to D.T. At the initial court listing for the
goal change/involuntary termination of parental rights, Mother arrived at the
courthouse with a pair of brass knuckles, two knives and a vial of urine in
her purse. She was immediately taken into custody, charged, and
subsequently found guilty of the crime of possessing a prohibited offensive
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weapon and furnishing drug-free urine as a result of the courthouse
incident.1
In May 2014, Mother pled guilty to aggravated harassment of a
prisoner and was sentenced to serve 23 months’ imprisonment, with
immediate parole. She was ordered to continue to participate in drug
screening and treatment programs and to seek and maintain employment.
On March 8, 2014, Mother was again arrested, this time for possession of a
controlled substance; she pled guilty, received an 18-month term of
probation and entered a drug treatment program.
On July 11, 2014, the court held a termination hearing during which
DHS presented the testimony of several social workers involved in Mother’s
case. The basic tenor of the DHS witnesses’ testimony was that Mother
continually failed to successfully complete her objectives, despite the fact
that she was provided with services and resources to address her issues
while D.T. was in placement. DHS offered evidence to show that Mother’s
compliance with the FSP fluctuated from its inception in 2011 and ultimately
remains unsatisfied. In sum, Mother’s parenting skills, aggressive behavior
and ability to maintain sobriety had not improved. DHS also pointed out
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Mother was sentenced to time in to 23 months in prison on the weapon
charge, with 12 months of probation, and time in to 12 months in prison for
the urine furnishing charge. However, the record is unclear as to whether
those sentences were ordered to run consecutively or concurrently to one
another.
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the fact that because D.T. is a behaviorally and emotionally compromised
child, who suffers from PTSD and AD/HD, and is a prior sexual abuse victim,
she needs therapeutic services and medication management which requires
ongoing redirection at school and at home. Ultimately, the trial court
concluded that DHS met its statutory burden, by clear and convincing
evidence, to terminate Mother’s parental rights under sections 2511(a) and
(b) of the Adoption Act.2 This timely appeal follows.
On appeal, Mother contends that the trial court erred in terminating
her parental rights where DHS did not make reasonable efforts to reunify her
with D.T. and DHS did not prove by clear and convincing evidence that
termination was proper under 23 Pa.C.S. §§ 2511(a)(1), (a)(2), (a)(5), and
(a)(8).
In In re J.R., 875 A.2d 1111 (Pa. Super. 2005), our Court stated:
The Pennsylvania Juvenile Act, 42 [Pa.C.S.] § 6301 et seq.,
requires that "reasonable efforts" be made to reunify the family
once a child has been declared dependent. 42 [Pa.C.S.] §
6351(e), (f). Nonetheless, the focus of the Juvenile Act is the
dependent child, not the parent. The statute cannot sustain an
interpretation that would allow the court to order parental
services that do not directly promote the best interests of the
child or that are beyond the statutory standard of "reasonable
efforts" to reunify the family. By requiring only "reasonable
efforts" to reunify a family, 42 [Pa.C.S.] § 6351(e), (f)
recognizes that there are practical limitations to such efforts. It
is not sufficient for a court to find simply that an action will
promote family reunification; the court must also determine
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2
See 23 Pa.C.S. § 2101, et seq.
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whether the action constitutes a reasonable effort towards
reunification.
Id. at 1118.
Based upon the record, we conclude that DHS made reasonable efforts
to promote the parent-child relationship where DHS fashioned a detailed and
suitably tailored FSP to meet Mother’s needs in order to reunify her with D.T.
The recommended services specifically addressed Mother’s drug dependency
and tendency to exhibit explosive behaviors. DHS has been actively working
with Mother for more than two years without success. Mother’s
procrastination and unwillingness to cooperate with DHS does not translate
into a failure on DHS’s part to provide reasonable services to her. See In re
J.W., 578 A.2d 952 (Pa. Super. 1990) (adequate parenting requires action
as well as intent).
With regard to Mother’s contention that DHS did not prove its case to
justify termination of parental rights, we note that the party seeking
termination must prove by clear and convincing evidence that the parent's
conduct satisfies the statutory grounds for termination delineated in 23
Pa.C.S. § 2511(a). In re L.M., 923 A.2d 505, (Pa. Super. 2007). Under
section 2511(a), the focus is on the conduct of the parent. Id. We review a
trial court’s decision to involuntarily terminate parental rights for an abuse of
discretion or error of law. In re A.R., 837 A.2d 560, 563 (Pa. Super. 2003).
Our scope of review is limited to determining whether the trial court’s order
is supported by competent evidence. Id.
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Based on a detailed review of the record, we conclude that DHS
presented clear and convincing evidence to terminate Mother’s parental
rights under sections 2511(a)(1) and (a)(5)3 of the Adoption Act where: (1)
D.T. has been in placement and foster care for two-and-one-half years; (2)
Mother’s ability to care for D.T. and remain available to her is entirely
speculative due to repeated incarcerations and will take significant additional
time to establish; (3) Mother has failed to successfully remedy the substance
abuse problems and mental health issues which led to D.T.’s placement; (4)
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We note that an appellate court must agree with the trial court's decision
as to only one subsection of section 2511(a) in order to affirm the
termination of parental rights. In re B.L.W., 843 A.2d 380 (Pa. Super.
2004) (en banc). To terminate parental rights pursuant to section
2511(a)(1), a petitioner must prove by clear and convincing evidence that:
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.
23 Pa.C.S. § 2511(a)(1). Moreover, under section 2511(a)(5), a petitioner
must prove by clear and convincing evidence that:
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 best serve
the needs and welfare of the child.
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Mother has not substantially complied with DHS’s family service plan; and
(5) termination would best serve D.T. needs and welfare where she has
significant behavioral and emotional problems. See In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010) (Adoption and Safe Families Act’s policies
demand reasonable efforts within reasonable time to remedy parental
incapacity; termination of parental rights proper where child in foster care
for first two years of life and need for permanency should not be suspended
where little rational prospect of timely reunification with parents exists).
In sum, due to Mother’s significant substance abuse and behavioral
issues, she is unable to provide a suitably safe and emotionally and
financially stable life for D.T. Although there have been spurts of effort to
comply with the FSP, Mother waited for over one year to complete parenting
and anger management classes. Moreover, her drug and alcohol treatment
program was not completed until four months after DHS filed its petition to
terminate. See 23 Pa.C.S. § 2511(b) (“With respect to any petition filed
pursuant to subsection (a)(1), 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.”). As the trial
court astutely noted, “[t]his child has been in care for 31 months. The child
needs permanency. Mother is [] still not ready to take care of [D.T.].” N.T.
Termination Hearing, 7/11/14, at 61.
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Accordingly, we conclude that the trial court’s decision to involuntarily
terminate Mother’s parental rights was not an abuse of discretion or error of
law. In re A.R., supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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