In Re: S.F., Appeal of: K.C.

J-S06031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.F., JR., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: K.C., MOTHER : No. 2196 EDA 2021
Appeal from the Decree Entered September 23, 2021
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 2021-00004
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED MARCH 16, 2022
Appellant, K.C. (“Mother”), appeals from the decree entered in the
Wayne County Court of Common Pleas, granting the petition of Appellee,
Wayne County Children and Youth Services (“CYS”), for involuntary
termination of Mother’s parental rights to her minor child, S.F., Jr. (“Child”).
We affirm.
The relevant facts and procedural history of this appeal are as follows.
Child was born in April 2020. Mother has a “history of mental health issues,”
including bipolar disorder and schizophrenia. (See N.T. Hearing, 9/3/21, at
5; CYS’s Exhibit 2, entered 9/3/21, at 3). S.F. (“Father”) was convicted of
aggravated indecent assault in 2020, and he subsequently received a five (5)
to ten (10) year term of imprisonment. (See CYS’s Exhibit 1, entered 9/3/21,
at 1). Father is currently incarcerated at SCI-Phoenix. (See N.T. Hearing at
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8).
The court adjudicated Child dependent on June 30, 2020, but Child
remained in parents’ home. (See Mother’s Exhibit 3, entered 9/3/21, at ¶¶
2-3). At that time, CYS developed a family service plan (“FSP”). (See N.T.
Hearing at 11). Following Father’s incarceration, however, CYS filed an
emergency motion for modification of custody. CYS obtained legal custody of
Child on January 25, 2021, and it placed Child in a pre-adoptive home. (See
Petition for Involuntary Termination, filed 3/9/21, at ¶¶ 7-8). Thereafter,
Mother demonstrated minimal compliance with her FSP goals including: 1)
maintaining a clean and safe home; 2) meeting Child’s basic needs; and 3)
taking care of her mental health and following all mental health
recommendations. (See N.T. Hearing at 13-15).
On March 9, 2021, CYS filed a petition for involuntary termination of
Mother and Father’s parental rights. The court conducted a termination
hearing on September 3, 2021. At that time, the court received testimony
from the CYS case worker, the psychologist who evaluated Mother, and the
social worker who supervised Mother’s visits with Child. On September 23,
2021, the court entered an opinion and final decree terminating Mother’s
parental rights.1 The court found that Mother had demonstrated an
unwillingness or inability to provide Child with essential parental care,
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1The court also involuntarily terminated Father’s parental rights, but he is not
a party to the current appeal.
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pursuant to 23 Pa.C.S.A. § 2511(a)(2). On October 21, 2021, Mother timely
filed a notice of appeal and concise statement of errors.
Mother now raises two issues for this Court’s review:
Whether the trial court erred in concluding that [Mother]
demonstrated an unwillingness or inability to provide the
minor child with the essential parental care necessary for
his physical or mental well-being and erred as a matter of
law in determining that the termination of parental rights of
[Mother] was warranted?
Whether the trial court erred as a matter of law in
determining that the termination of parental rights of
[Mother] would serve the developmental, physical, and
emotional needs and welfare of the minor child?
(Mother’s Brief at 4).
Appellate review in 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).
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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
(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)).
CYS filed a petition for the involuntary termination of Mother’s parental
rights 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:
* * *
(2) The repeated and continued incapacity,
abuse, neglect or refusal of the parent has caused the
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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(a)(2), (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
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).
On appeal, Mother contends that she had moderate or substantial
compliance with her FSP goals throughout the majority of CYS’s involvement
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with her family. Mother emphasizes that she has: 1) signed all releases for
records and ensured Child’s attendance at medical appointments; 2)
maintained ownership of her home and continually resided there; 3) attended
her psychological and parental fitness evaluations; and 4) complied with all
mental health treatment recommendations. To the extent CYS relied upon
the parental fitness evaluation as grounds for termination, Mother insists that
the evaluation was performed a year prior to the termination hearing.
Although Mother concedes that the evaluation showed she needed “support
and assistance” to parent Child, Mother maintains that she was not excluded
as a potential caregiver. (Mother’s Brief at 14).
Further, Mother asserts that the trial court’s conclusions in support of
termination were “inconsistent with the record.” (Id. at 15). Regarding the
court’s conclusions about Mother’s inability to care for Child, Mother argues
that her parenting skills improved while she attempted to comply with the FSP
goals. Specifically, Mother notes that Child gained weight after she
established a feeding routine. Mother also claims that there was an “overall
significant improvement” in “affection between [Mother] and Child.” (Id.)
Mother concludes that CYS did not meet its burden of proof under Section
2511(a)(2), and termination of her parental rights is not in Child’s best
interests. We disagree.
“The bases for termination of parental rights under Section 2511(a)(2),
due to parental incapacity that cannot be remedied, are not limited to
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affirmative misconduct; to the contrary, those grounds may include acts of
refusal as well as incapacity to perform parental duties.” In re S.C.B., 990
A.2d 762, 771 (Pa.Super. 2010). Under 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).
Under Section 2511(b), the court must consider whether termination
will best serve the child’s needs and welfare. In re C.P., 901 A.2d 516(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. at 520 (internal citations omitted). “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.”
In re Z.P., supra at 1121 (internal citations omitted).
“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
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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 [herself] to take and maintain
a place of importance in the child’s life.
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).
Instantly, the CYS case worker provided the following summary of the
agency’s concerns regarding Mother’s ability to parent:
Our observations are that we do not believe that [Mother]
has the ability to meet [Child’s] basic needs at this time.
Prior to out of home placement, she was feeding him expired
foods, she refused to listen to the recommendations of [the
social workers] as well as [Father]. At the time, she was
allowing [Child] to play with inappropriate items … that were
not age appropriate for him, and she had also left [Child]
alone in the bath while she had [gone] outside. Since
placement, she’s frequently prompted to focus on parenting
tasks … such as feeding. She does not demonstrate an
understanding of [Child’s] cues for hunger, sleep, attention,
or play and she has to be [prompted] on how to [soothe]
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[Child] when he is upset.
(N.T. Hearing at 14).
The psychologist who evaluated Mother expressed additional concerns:
I think because of [Mother’s] demonstrated dependency and
history which involved some significant mental health
concerns, including self-injury and multiple hospitalizations,
I think the stability and safety of both her home and her
care of her child is going to be highly dependent on who she
is with. I think she will likely need other people in her life
and my concern is that’s a pattern established … that she
would be at high risk for not making a wise choice for …
another significant relationship that she would have this
dependent personality pattern in.
(Id. at 48-49).
The trial court accepted this testimony and concluded that Mother lacked
the capacity to parent Child:
[T]he record demonstrates that Mother is unable to care for
herself independently, and as such is unable to care for the
minor child.
* * *
Mother’s reliance on Father—a convicted sex offender—on
making decisions on her behalf is concerning. When [caring
for] the minor child, Mother has continued to demonstrate
a lack of responsibility because she ignores the minor child
by being on the phone.
* * *
The minor child has demonstrated a diminished and near
non-existent bond with Mother as the minor child
continuously cries before and during visits with Mother.
Further, Mother is unable to parent alone and is reliant on
Father and Mother will only become less independent due to
Father’s incarceration. Based upon the testimony presented
at the hearing, this [c]ourt finds that [CYS] presented clear
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and convincing evidence to support the termination of
Mother’s parental rights under 23 Pa.C.S.A. § 2511(a)(2).
(Trial Court Opinion at 6-7). On this record, the court correctly determined
that Mother’s incapacity caused Child to be without essential parental care,
and the causes of the incapacity cannot or will not be remedied. See Interest
of Lilley, supra.In addition to the court’s analysis of Mother’s parenting skills, we also
note that Mother failed to comply with certain FSP objectives, including the
maintenance of a clean and safe home for Child. The CYS case worker testified
about Mother’s noncompliance with this objective as follows:
The home is cluttered and not baby proofed. There’s a
strong smell of body odor, cigarette smoke, as well as cat
urine. Garbage was noted throughout the home and
scattered on tables. [Mother] confirmed bed bugs as well
as fleas in the home.
(N.T. Hearing at 14).
The case worker also discussed Mother’s relationship with drugs and
alcohol. Specifically, Mother brought a bottle of vodka to a July 29, 2021 visit
with Child. (See id.) That same day, Mother tested positive for marijuana.
(Id.) Regarding the vodka bottle, Mother explained “she was at a friend’s
house having some drinks the night prior and she did not want to leave that
bottle because she had paid for it ….” (Id. at 32). Regarding the positive test
for marijuana, Mother “reported that she had been around somebody who had
been smoking.” (Id. at 30). Although CYS could perform additional testing
to determine whether the result was due to secondhand smoke, such testing
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was unnecessary because Mother “should not have even been around people
that had been smoking marijuana.” (Id.)
Additionally, the case worker testified that Mother and Child no longer
shared a bond. (Id. at 24). Although Mother attended visits with Child, the
case worker witnessed Mother’s inability to provide Child with the support he
needed:
There were multiple occasions where [Child] was observed
wanting [Mother’s] affection, like going up to her wanting to
be held [and], at one point in time, [Mother] had even like
pushed him down off of her or not being able to [soothe]
him appropriately…. [Child] just no longer [sought] her
affection in that way.
(Id. at 24). In comparison, Child is bonded with his current foster parents,
who want to adopt him. (Id. at 20-21).
Here, terminating Mother’s parental rights would not destroy an
existing, necessary, and beneficial relationship for Child. See In re Z.P.,
supra. Based upon the foregoing, the record supports the court’s conclusion
that clear and convincing evidence supported termination of Mother’s parental
rights under Sections 2511(a)(2) and (b). Id. Consequently, we affirm the
decree terminating Mother’s parental rights to Child.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2022
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