In the Interest of: Z.J.H., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.J.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.R.T., MOTHER
No. 925 EDA 2015
Appeal from the Decree March 16, 2015
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): CP-51-AP-0000323-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 22, 2015
Appellant, L.R.T., (“Mother”) appeals from the decree entered March
16, 2015 in the Court of Common Pleas of Philadelphia County, involuntarily
terminating the parental rights of Mother to Z.J.H. (“Child”) (born February
of 2013) and changing Child’s permanency goal to adoption under Section
6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351.1 We affirm.
In February of 2013, Child came into the care of the Philadelphia
Department of Human Services (“DHS”) after DHS received a General
Protective Services report stating both Mother and Child tested positive for
cocaine at the time of Child’s birth. On February 13, 2013, DHS obtained an
Order of Protective Custody. On April 8, 2013, the trial court adjudicated
Child dependent. At that hearing, Mother was ordered to go to the Clinical
Evaluation Unit (“CEU”) for a drug screen and dual diagnosis assessment
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1
On March 16, 2015, J.H.’s (“Father”) parental rights to Child were
terminated. Father is not a party to this appeal nor did he file a separate
appeal. Mother has six other children who are not in her care.
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and complete a Family Service Plan (“FSP”). Mother’s FSP goals were (1) to
complete drug and alcohol treatment; (2) to attend family school; (3) to
attend visits with Child; and (4) to complete mental health treatment.
On June 28, 2013, a permanency review hearing was held, and Mother
was found to be minimally compliant with the objectives set out in the FSP
and was again referred to the CEU. At a permanency review hearing held on
September 9, 2013, Mother was found to be in substantial compliance with
her FSP goals and was ordered to go back to the CEU. On December 9,
2013, a permanency review hearing was held, at which time Mother was
incarcerated and referred to the CEU. On February 24, 2014, a report was
made to the court that Mother had been discharged from family school for
non-compliance. At permanency review hearings held on March 19, 2014
and April 21, 2014, Mother was ordered to go to the CEU.
On July 2, 2014, DHS filed a petition to involuntarily terminate
Mother’s parental rights and to change Child’s permanency goal to adoption.
On July 7, 2014, at a permanency review hearing, Mother was found to be
minimally compliant with the FSP and was ordered to go to the CEU. On
December 12, 2014 and March 16, 2015, the trial court held hearings on the
termination petition. At these hearings, Eileen Haskins, a DHS social
worker; Manque Flemene, an agency worker for Delta Community Support;
and Mother testified. On March 16, 2015, the trial court entered a decree
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involuntarily terminating Mother’s parental rights to Child and changing
Child’s goal to adoption.
On March 30, 2015, Mother timely filed a notice of appeal, along with
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Mother raises the following issues.
1. Did the [t]rial [c]ourt err in terminating [Mother’s] parental
rights under Pa.C.S. Section 2511?
2. Did the [t]rial [c]ourt err in finding that the termination of
parental rights best served [C]hild’s developmental, physical
and emotional needs under Section 2511(b)?
3. Did the [t]rial [c]ourt err in changing [C]hild’s goal to
adoption?
Mother’s Brief at vi.
Our standard of review regarding orders terminating parental rights is
as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an
abuse of discretion, an error of law, or insufficient evidentiary
support for the trial court’s decision, the decree must stand.
Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a
jury verdict. 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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, 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.
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Id. at 806. We have previously stated: The 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.” In re J.L.C. &
J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The trial 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 re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, we
will affirm even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally,
this Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581
Pa. 668, 863 A.2d 1141 (2004).
In terminating Mother’s parental rights, the trial court relied upon
Sections 2511(a)(1), (2), and (b) of the Adoption Act which provide as
follows:
(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
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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.
* * *
(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.
We have explained this Court’s review of a challenge to the sufficiency
of the evidence to support the involuntary termination of a parent’s rights
pursuant to Section 2511(a)(1) as follows:
To satisfy the requirements of Section 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
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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 his or 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
[s]ection 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted).
Regarding the definition of “parental duties,” this Court has stated:
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
Court 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 his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
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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 . . . her physical and emotional
needs.
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).
With respect to Section 2511(a)(2), the grounds for termination of
parental rights, 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, 337 (Pa.Super. 2002). Nevertheless, 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 In re Geiger, 459 Pa. 636, 331 A.2d 172
(1975). There 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).
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Parental duty requires that the parent act affirmatively with a good
faith interest and effort, and not yield to every problem, in order to maintain
the parent-child relationship to the best of his or her ability, even in difficult
circumstances. In re E.M., 908 A.2d 297, 306 (Pa. Super. 2006). A trial
court can find an incapacity to parent by finding affirmative misconduct, acts
of refusal to parent as well as an incapacity to parent. In re S.C.B., 990
A.2d 762, 771 (Pa. Super. 2010).
On appeal, Mother argues that the trial court erred in terminating her
parental rights to Child. Mother’s Brief at ix. Mother argues that she was
compliant with her FSP objectives, including attending drug and mental
health treatment, and she was visiting Child. Id.
The trial court found that, during six months prior to the filing of the
termination petition, Mother demonstrated a settled purpose of relinquishing
her parental claim to Child or failed to perform parental duties. Trial Court
Opinion, 5/21/15, at 10. Moreover, the trial court found that, during the two
years Child remained in DHS’s care, “Mother has not come close to meeting
her FSP objectives.” Id. The trial court found that DHS still had drug and
alcohol concerns at the time of the termination hearing. Moreover, the trial
court found, “Mother failed to provide any documentation to DHS indicating
that she was in compliance with the FSP objectives in order for her to be
reunited with Child.” Id.
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At the hearing, Ms. Haskins testified that Mother failed to visit
consistently with Child. N.T., 12/12/15, at 23. Ms. Flemene testified that
Mother missed nineteen of fifty-eight scheduled visits with Child since
January 21, 2014. N.T., 3/16/15, at 5. Ms. Haskins testified that Mother did
not complete her FSP goal to attend family school. N.T., 12/12/15, at 22.
Ms. Haskins testified that Mother’s attendance had become sporadic. Id. at
22. Ms. Haskins further testified that Mother was discharged from family
school because she “became a little obstinate and noncompliant in terms of
following the directives of staff.” Id. Ms. Haskins testified that Mother did
not complete the drug and alcohol program, and the mental health
treatment. N.T., 12/12/15, at 18-19, 23. While Mother has participated in
drug and alcohol counseling, her participation was sporadic. N.T., 12/12/15,
at 18-19. Ms. Haskins testified that she was still concerned about Mother’s
use of drugs and alcohol and Mother’s mental health. Id. at 20, 21-22.
Mother’s argument regarding Section 2511(a)(1) essentially seeks for
this Court to make credibility and weight determinations different from those
of the trial court. We stated in In re Z.P., 994 A.2d 1108, 1125 (Pa. Super.
2008), a child’s life “simply cannot be put on hold in the hope that [a parent]
will summon the ability to handle the responsibilities of parenting.” Rather,
“a parent’s basic constitutional right to the custody and rearing of his child is
converted, upon the failure to fulfill his or her parental duties, to the child’s
right to have proper parenting and fulfillment of his or her potential in a
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permanent, healthy, safe environment.” In re B., N.M., 856 A.2d at 856.
Consequently, Mother’s issue on appeal lacks merit, and we find no abuse of
discretion in the trial court’s evaluation of Section 2511(a)(1).
Mother argues that DHS failed to present clear and convincing
evidence that the causes of the incapacity, abuse, neglect or refusal will not
be remedied. Mother’s Brief at 4. With respect to Section 2511(a)(2), we
find the following portion of the trial court’s opinion relevant to our inquiry.
The [t]rial [c]ourt found that Mother evidenced both an
incapacity and refusal to parent. Mother’s failure to comply with
her FSP objectives when [C]hild was in foster care demonstrated
her incapacity and refusal to parent. [The trial c]ourt was not
persuaded that Mother could resolve her dependency issues in
the near future. In order to be reunified with [C]hild, Mother
had to be in compliance with orders from the [trial c]ourt
intended to address issues related to drug and alcohol
treatment, mental health treatment, Family School and
visitation. Over the entire time [C]hild was committed to DHS,
Mother did not comply with these FSP objectives. Additionally,
there was no evidence, during the approximately two years that
Child was in placement[,] that Mother developed the capacity to
care for [C]hild’s special needs.
Trial Court Opinion, 5/21/15, at 12.
At the termination hearing, Ms. Haskins testified that Child requires
twenty-four hour supervision because Child has cerebral palsy and has
special needs. N.T., 12/12/15, at 26. Ms. Haskins testified that when
Mother accompanied Child to a medical treatment, Mother had very little
interaction with the doctor and only asked the doctor one or two questions.
Id. at 10-11. Ms. Haskins testified that, despite receiving special training,
Mother was unsuccessful in feeding Child because Mother was unable to
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operate the feeding machine. Id. at 11-12. Moreover, Ms. Haskins testified
that Mother could not properly feed Child after two years. Id. at 12-13.
Furthermore, the trial court found:
[C]hild can’t wait for Mother to remedy these issues. She’s been
given more than enough time, more than enough resources,
more than enough effort on behalf of [DHS] to engage her in the
task of learning how to parent [C]hild. She made some effort
but far short of what would be necessary to allow [C]hild to be
reunited with her and trust [C]hild’s care which will be for the
rest of her life.
N.T., 3/16/15, 24-25. We again rely on this Court’s statements of the law
contained in In re Z.P. and in In re B., N.M., which we have quoted supra,
in regard to our discussion of Section 2511(a)(1). Accordingly, we conclude
that the trial court’s determinations regarding Section 2511(a)(2) are
supported by sufficient, competent evidence in the record.
Mother argues that the DHS worker testified that Child is two years old
and has a bond with Mother. Mother’s Brief, at 6. The trial court must also
consider how terminating Mother’s parental rights would affect the needs
and welfare of Child pursuant to 23 Pa.C.S.A. § 2511(b). Pursuant to
Section 2511(b), the trial court’s inquiry is specifically directed to a
consideration of whether termination of parental rights would best serve the
developmental, physical and emotional needs of the child. See In re
C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005), appeal denied, 587 Pa.
705, 897 A.2d 1183 (2006). “Intangibles such as love, comfort, security,
and stability are involved in the inquiry into the needs and welfare of the
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child.” Id. at 1287 (citation omitted). We have instructed that the court
must also discern the nature and status of the parent-child bond, with
utmost attention to the effect on the child of permanently severing that
bond. See id.
The trial court found:
[C]hild was two years old at the time of the hearing, and had
been living in a pre-adoptive home with foster parents who were
meeting all of her needs. Ms. Haskins testified that she had
observed the Child in the home every month for 7-8 months
prior to the December 2014 hearing. Ms. Haskins testified that
[C]hild was bonded with her foster parents who were meeting all
of her needs.
Since [C]hild spent approximately two years in foster care,
Mother has demonstrated no interest in taking steps which would
allow her to care for [C]hild, and the fact that [C]hild is in a
nurturing and loving foster home, the developmental, physical
and emotional needs and welfare of [C]hild is best served by
terminating Mother’s parental rights.
Trial Court Opinion, 5/21/15 at 14.
Ms. Haskins testified that Child would not be harmed if Mother’s
parental rights were terminated. N.T., 3/16/15, at 13. Ms. Haskins testified
that Child does not know Mother. N.T., 12/12/14, at 29. Ms. Haskins
testified that Mother does not know Child and “all the very special needs that
[Child] requires and actually how to care for her on a daily basis.” Id. Ms.
Flemene testified that removing Child from Mother’s care would not have an
impact on Child. N.T., 3/16/15, at 8.
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Ms. Haskins testified that she has seen major progress in Child in the
pre-adoptive home. N.T. 12/12/15 at 27. Ms. Haskins testified that Child
looks for both foster mother and foster father when Child hears either foster
parent speak. Id. Ms. Haskins testified that foster mother is very attentive
to Child and is very knowledgeable about Child’s special needs. Ms. Haskins
further testified that the foster mother provides twenty-four hour daily
supervision for Child. Id. at 26.
In the instant case, on the issue of bonding, our review of the record
reveals no evidence of a bond between Mother and Child. The trial court
found, “the only parental bond that exists is between Child and the foster
care parent, that’s uncontested.” N.T., 3/16/15, at 24. Furthermore, the
trial court found “Child can’t wait for Mother to remedy these issues.” Id.
We have stated, “In cases where there is no evidence of any bond between
the parent and child, it is reasonable to infer that no bond exists.” In re
K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).
After this Court’s careful review of the record, we conclude that the
competent evidence in the record supports the trial court’s determination
that terminating Mother’s parental rights pursuant to Section 2511(b) serves
Child’s best interest. See In re M.G., 855 A.2d at 73-74.
Next, Mother argues that the trial court erred in changing the
permanency goal for Child to adoption. This Court has stated:
When reviewing an order regarding the change of a placement
goal of a dependent child pursuant to the Juvenile Act, 42 Pa.
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C.S.A. § 6301, et seq., our standard of review is abuse of
discretion. When reviewing such a decision, we are bound by
the facts as found by the trial court unless they are not
supported in the record.
In re B.S., 861 A.2d 974, 976 (Pa. Super. 2004) (citation omitted).
Further,
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. 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.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007).
Section 6351(f) of the Juvenile Act sets forth the following pertinent
inquiries for the reviewing court:
(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.
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(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.
...
(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.
42 Pa.C.S.A. § 6351(f)(1)-(6), (9).
Additionally,
[t]he trial court must focus on the child and determine the goal
with reference to the child’s best interests, not those of the
parents. “Safety, permanency, and well-being of the child must
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take precedence over all other considerations.” Further, at the
review hearing for a dependent child who has been removed
from the parental home, the court must consider the statutorily
mandated factors. “These statutory mandates clearly place the
trial court's focus on the best interests of the child.”
In re S.B., 943 A.2d 973, 978 (Pa. Super. 2008) (emphasis in original)
(citations and quotations omitted).
Here, the record reflects that the trial court appropriately considered
Child’s best interests in deciding whether to change the permanency goal to
adoption. The competent evidence in the record supports the trial court’s
determinations that Child has been in foster care for two years, and that
Mother has demonstrated no interest in taking steps which would allow her
to care for Child. Trial Court Opinion, 5/21/15, at 14. Moreover, the
competent evidence supports the trial court’s determination that Child is in a
nurturing and loving foster home. Id. Moreover, competent evidence in the
record supports the trial court’s determination that Child’s developmental,
physical and emotional needs and welfare are being met in her foster home.
Id. Thus, we will not disturb these determinations. See In re M.G., 855
A.2d at 73-74.
After a careful review, we affirm the decree terminating Mother’s
parental rights on the basis of Section 2511(a)(1), (2), and (b) of the
Adoption Act, and changing Child’s permanency goal to adoption under
Section 6351 of the Juvenile Act.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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