In the Interest of: R.E.M., Appeal of: B.A.U.

J-A24020-18; J-A24021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.E.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: B.A.U., MOTHER :
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: No. 576 MDA 2018
Appeal from the Decree April 3, 2018
In the Court of Common Pleas of Columbia County Orphans' Court at
No(s): 233-OC-2017,
CP-19-DP-0000037-2016
IN THE INTEREST OF: D.J.U., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: B.A.U., MOTHER :
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: No. 577 MDA 2018
Appeal from the Decree Entered April 3, 2018
In the Court of Common Pleas of Columbia County Orphans' Court at
No(s): 232-OC of 2017,
CP-19-DP-0000056-2015
IN THE INTEREST OF: F.L.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: B.A.U., MOTHER :
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:
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: No. 578 MDA 2018
Appeal from the Decree Entered April 3, 2018
In the Court of Common Pleas of Columbia County Juvenile Division at
No(s): 231-OC-2017,
J-A24020-18; J-A24021-18
CP-19-DP-0000057-2015
IN THE INTEREST OF: R.E.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.L.M., JR., FATHER :
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: No. 614 MDA 2018
Appeal from the Decree Entered April 3, 2018
In the Court of Common Pleas of Columbia County Orphans' Court at
No(s): 233-OC-2017,
CP-19-DP-0000037-2016
IN THE INTEREST OF: D.J.U., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: S.L.M., JR., FATHER :
:
:
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: No. 615 MDA 2018
Appeal from the Decree Entered April 3, 2018
In the Court of Common Pleas of Columbia County Orphans' Court at
No(s): 2017-OC-0000232,
CP-19-DP-0000056-2015
IN THE INTEREST OF: F.L.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: S.L.M., JR., FATHER :
:
:
:
: No. 616 MDA 2018
Appeal from the Decree Entered April 3, 2018
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J-A24020-18; J-A24021-18
In the Court of Common Pleas of Columbia County Juvenile Division at
No(s): 231-OC-2017,
CP-19-DP-0000057-2015
BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 07, 2018
B.A.U. (“Mother”) and S.L.M. (“Father”) appeal from the orders
terminating their parental rights.1 We find the trial court did not abuse its
discretion and affirm the orders.
Mother and Father have three minor children, D.J.U., born June 2013,
F.L.M., born March 2015, and R.E.M., born June 2016 (collectively,
“Children”). In August 2015, Columbia County Children and Youth Services
(“CYS”) received a referral based on lack of cleanliness at the residence and
lack of cleanliness and hygiene of Children. In October 2015, the court found
D.J.U. and F.L.M. dependent. The court found R.E.M. dependent after his birth.
A Service Plan was created, which included the following goals: Meet the basic
needs of Children, obtain medical assistance for Children; improve parenting
skills; improve home conditions; improve Children’s hygiene; utilize local
resources; and comply with medical and behavioral appointments for Children
and for Mother and Father. N.T., 4/1/18, at 8-20; Exh. CYS-B. On November
17, 2017, CYS filed petitions for involuntary termination of Mother and
Father’s parental rights to Children.
____________________________________________
1Mother and Father each filed separate notices of appeal for each child. We
have consolidated the six appeals sua sponte.
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In July 2016, Father moved to Arkansas, and Mother followed in August
2016. Id. at 25. At the hearing on the petitions, Kerri Shaylor, a CYS
caseworker, testified that Mother and Father remained in Arkansas and have
not seen Children since they moved. N.T., 4/18/18, at 25-26. Mother has
weekly phone calls with Children. Id. at 26. Father attends the phone calls
less regularly. Mother and Father sent a gift card for Christmas and birthday
cards. Id. at 26-27. Ms. Shaylor testified that Mother and Father completed
parenting classes, but failed to complete the remaining goals. Id. at 8-20. Ms.
Shaylor stated that she did not facilitate use of Skype for the phone calls, and
noted Mother and Father only requested the use of video calls “a couple
months ago.” Id. at 44-45.
CYS did not send a request to Arkansas under the Interstate Compact
on the Placement of Children (“ICPC”)2 seeking approval to send Children to
Arkansas until May 2017. Id. at 28. Ms. Shaylor delayed sending the request
____________________________________________
2 The ICPC has been described as:
As drafted, the [ICPC] provides for notification of
appropriate state or local authorities in the receiving state
before placement by out-of-state persons and agencies. The
authorities in the receiving state are given the opportunity
to investigate and, if satisfied, must notify the sending state
that the proposed placement does not appear to be contrary
to the child’s best interest. After a placement has been
made, the sending state continues to have financial
responsibility for support and retains jurisdiction over the
child.
McComb v. Wambaugh, 934 F.2d 474, 479–480 (3d Cir. 1991) (alteration
in original); 62 P.S. § 761; 55 Pa. Code § 3130.41.
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because Mother and Father did not have appropriate housing and she did not
want Arkansas to deny the ICPC request. Id. at 47. Arkansas denied the first
request because Mother and Father did not complete the paperwork required
for the home study process. Id. at 28-29. CYS sent a second request in
October 2017. Id. at 29. The process had not been completed at the time of
the hearing due to Mother and Father’s “lack of compliance.” Id. at 31. Mother
and Father missed two fingerprint appointments, did not return the paperwork
to Arkansas in a timely manner, and were not following through with the
process. Id. Ms. Shaylor stated CYS does not know whether the home in
Arkansas was appropriate. Id.Ms. Shaylor stated she had not “personally” completed an ICPC request
in other cases, but CYS had, and noted she had done one prior request. Id.
at 50-51. Further, she testified that she was trained on how to make a request,
and, when a parent moved, she copied the file and her supervisor completed
the paperwork. Id. at 51.
Ms. Shaylor further testified that Children appear happy in the foster
home, were clean and well-dressed, and their basic, physical, and emotional
needs were met. Id. at 33.
Mother testified that she speaks with Children by phone once a week,
and that the foster parents denied her request to have video calls. Id. at 68-
69. She stated that she and Father obtained housing in Arkansas in December
2016. Id. at 71. Mother claimed that they did not receive the paperwork for
the first ICPC request in May 2017. Id. at 73. Mother stated that she moved
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to Arkansas because she was told “Arkansas would be a better place for” her
and Children and she and Father were “tired of getting messed with” by the
caseworkers. Id. at 74, 90, 92. Mother’s father, step-mother, grandmother,
and two sisters live in Berwick, Pennsylvania, and she has no relatives in
Arkansas. Id. at 89.
Father testified that they fixed the concerns regarding the home in
Pennsylvania. Id. at 95-97. He and Mother moved to Arkansas because CYS
“wanted to run us around” and he was told that in Arkansas “they won’t run
me around like they did up there.” Id. at 97-98. He attends phone calls when
able, based on his work and school schedule. Id. at 98. He and Mother only
received paperwork for the ICPC request in October 2017. Id. at 101. Father’s
grandmother, great-uncle, ex-wife, and seven-year-old daughter live in
Arkansas. Id. at 113. Father’s mother, father and sister live in Pennsylvania.
Id. at 113.
The trial court granted the termination petitions. It found termination
proper under 23 Pa.C.S.A. § 2511(a)(1), (5), (8),3 and (b). Specifically as to
Subsection 2511(a)(1), the court found that “by conduct continuing for a
period of at least six months immediately preceding the filing of the petition,”
Mother and Father “have evidenced a settled purpose of relinquishing parental
claim to [Children] and have refused and failed to perform parental duties.”
____________________________________________
3 The trial court’s opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) also cites the text of section 2511(a)(2). The petitions for
termination filed by CYS, however, sought termination under Subsections
2511(a)(1), (5), and (8).
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Id. at 117-18. The court found “the services or assistance readily available to
the parents are not likely to remedy the conditions which led to the removal
or placement of [Children] within a reasonable period of time.” Id. at 118.
The trial court further found that termination would “best serve the
developmental, physical, and emotional needs and welfare of” Children. Id.
at 118-19. The court noted that Children, who were young, have had only
phone contact with parents for almost two years, and that it would be “remiss
if the Court would send the children . . . back to a place where they know
nobody,” noting they did not “even know [Mother and Father] at this point.”
Id. at 119.
The trial court further found CYS delayed initiating the ICPC request
because “parents had no stable living arrangements,” and Arkansas denied
the request to assist because Mother and Father did not complete the required
paperwork. Trial Court Opinion, filed May 24, 2018, at 4. The trial court found
the delay in processing the request “was due to Mother and Father’s lack of
and/or slow compliance with paperwork, fingerprints, etc.” Id.
The trial court further found that CYS proceeded reasonably under the
Interstate Compact, that it made reasonable efforts to assist Mother and
Father, and that Mother and Father intentionally left Pennsylvania because
they wanted “to terminate their involvement with [CYS].” Id. In addition, the
trial court found Children were doing well, were with foster parents who hoped
to adopt Children, and Children were “healthy, happy, and maturing age
appropriately.” Id.
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Mother and Father filed timely notices of appeal. They raise the following
issues on appeal:
1. Whether the trial court erred in determining that [CYS]
presented clear and convincing evidence that grounds for
involuntary termination exist.
2. Whether the trial court abused its discretion when
granting [CYS’s] Petition for Involuntary Termination of
Parental Rights when [CYS] failed to provide reasonable
efforts to aid the family in reunification.
3. Whether the trial court abused its discretion and
[committed an] error of law when it determined parents
displayed a settled purpose to relinquish their rights by
moving to Arkansas.
4. Whether the trial court abused its discretion and
committed an error of law when it ignored the fact that
[CYS] failed to submit a timely referral to the Interstate
Compact on the Placement of Children knowing parents had
relocated to Arkansas.
Mother’s and Father’s Br. at 5-6. We will address these claims together.
Mother and Father argue they failed to meet their goals because CYS
did not make a timely ICPC request. They argue the trial court ignored this
failure, as well as other CYS failures, such as their failure to facilitate video
calls between Mother and Father and Children. They further maintained CYS
relied on old information regarding the conditions of their home and that the
court erred in finding they evidenced a settled purpose to relinquish their
parental rights.
When reviewing orders terminating parental rights, we must “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
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2012). Where “the factual findings are supported,” we review the decision “to
determine if the trial court made an error of law or abused its discretion.” Id.We will reverse a decision “for an abuse of discretion only upon demonstration
of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” Id.The Pennsylvania Supreme Court has explained the reason for applying
an abuse of discretion standard to termination decisions:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court’s legal conclusions are not the result of an error of law
or an abuse of discretion.
Id. at 826-27 (citations omitted).
A trial court may terminate parental rights only after finding grounds for
termination existed under Section 2511(a) and that termination is in the
child’s best interest under Section 2511(b). Although the trial court terminated
Mother’s parental rights pursuant to several subsections of Section 2511(a),
we need only conclude that its decision was proper under any one subsection
of Section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc). Here, we conclude that the trial court properly terminated Mother’s
parental rights pursuant to Section 2511(a)(1).
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Section 2511(a)(1) provides:
(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.
23 Pa.C.S.A. § 2511(a)(1). Further, with respect to section 2511(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.” 23 Pa.C.S.A. § 2511(b).
“Although it is the six months immediately preceding the filing of the
petition that is most critical to the analysis, the trial court must consider the
whole history of a given case and not mechanically apply the six-month
statutory provision.” In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004).
Further:
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.
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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’.
Id. (quoting In re C.M.S., 832 A.2d 457, 462 (Pa.Super.2003). Parental duty
requires that a 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.”
Id. (quoting In re Adoption of Dale A., II, 683 A.2d 297, 302 (Pa.Super.
1996)). A parent is required to “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.” Id.Here, the trial court found Mother and Father “evidenced a settled
purpose of relinquishing parental claim to [Children] and have refused and
failed to perform parental duties.” N.T., 4/1/18, at 117-18. In its 1925(a)
opinion, the trial court clarified that “it cannot be any clearer that Mother and
Father’s conduct evidenced a failure to perform parental duties for at least six
months, more specifically for at least 18 months before the petition was filed.”
TCO at 7. It found
From at least August 2016 through the time of the hearing,
Mother and Father have not seen the children at all. Mother
has made regular telephone calls, but that is not parenting
in the least. Mother and Father left Pennsylvania in the
summer of 2016, to avoid the requirements and help that
[CYS] was providing them and their children. They have not
returned. They did not attend the hearing except by phone.
There is no indication they are going to return to
Pennsylvania.
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TCO at 7-8. The trial court noted that there was “some indication” that Mother
and Father were waiting until their financial situation improved before they
saw Children, but noted that “[p]arental rights may not be preserved by
waiting for some more suitable financial circumstances or convenient time for
the performance of parental duties and responsibilities,” and that parents
must act “affirmatively, with good faith interest and effort.” Id. at 8 (quoting
In the Interest of C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000)). The court
concluded:
Mother and Father, without good reason, voluntarily left
their children in foster care in Pennsylvania to be raised by
other adults. In the meantime, the minor children have been
growing and maturing. Their development through
childhood and adolescence into adulthood cannot wait for
Mother and Father to be ready to provide care. The minor
children need[] proper guidance and nurturing now. Both
Mother and Father have many relatives and connections in
the Berwick area. Their lengthy relocation many miles away
to Arkansas without their children is inexcusable.
TCO at 8-9. The record supports the trial court’s factual findings and it did not
abuse its discretion in finding CYS established by clear and convincing
evidence that termination was proper under Section 2511(a)(1), including
that, during the relevant six month period, Mother and Father failed to perform
parental duties.
Further, Section 2511(a)(1) requires a finding that the parent either
evidenced a settled purpose to relinquish their parental claim or a failure to
perform parental duties. At the hearing, the court found parents evidenced
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both by moving to Arkansas, without good reason, and not seeing Children.
Contrary to Mother and Father’s claim, this was not an abuse of discretion.
In addition, the trial court did not err in finding CYS made reasonable
efforts in these circumstances. CYS did not immediately place a request under
the ICPC, but the trial court did not abuse its discretion in finding CYS acted
reasonably where, as here, CYS wanted to ensure there was appropriate
housing and where, after the request, parents did not comply with the
requirements. Mother and Father claim Arkansas did not receive the May 2017
request. However, Ms. Shaylor testified that Arkansas denied the request
because Mother and Father failed to complete the home study paperwork, and
the trial court credited this testimony. N.T., 4/18/18, at 28, 31. Further,
although Ms. Shaylor testified that a person need not have their own home
before an ICPC request is made, she also testified that if the housing was not
adequate, the request would be denied. Id. at 53.
We further note that the Pennsylvania Supreme Court has held that
“while reasonable efforts should be considered and indeed, in the appropriate
case, a trial court could insist upon their provision,” a trial court may grant a
petition to terminate parental rights even if an agency failed to provide
reasonable efforts. In re D.C.D., 105 A.3d 662, 675 (Pa. 2014). Here, even
if CYS did not engage in reasonable efforts, any such failure did not impact
Mother and Father’s failure to perform parental duties, as the failure resulted
from their relocation and refusal to return, and was not due to any perceived
lack of reasonable efforts by CYS.
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Mother and Father also argue that Ms. Shaylor relied on old information
to support the termination petition. Although the information relied on by Ms.
Shaylor regarding the conditions of the home were from prior to the move to
Arkansas, this was because Mother and Father moved and failed to take
reasonable steps to comply with the ICPC process. Therefore, because Mother
and Father delayed the process, CYS did not have information regarding their
Arkansas home.
Mother and Father also argue the trial court erred in finding Ms. Shaylor
credible because she was not appointed to the case until after Mother and
Father moved to Arkansas, and because her testimony was inconsistent
regarding whether she had previously completed an Interstate Compact
request. However, “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.” In re Z.P., 994 A.2d 1108, 1115-16 (Pa.Super. 2010)
(quoting In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002)).
When supported by the record, as they are here, we must accept the credibility
determinations of the trial court. In re Adoption of S.P., 47 A.3d at 826.
To the extent Mother and Father also challenge the trial court’s findings
under Section 2511(b), see Appellant Br. at 12, we find that the trial court
did not abuse its discretion in finding termination proper under Section
2511(b).
Section 2511(b) provides:
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(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.
23 Pa.C.S.A. § 2511(b). The focus under Section 2511(b) is not on the parent,
but on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super.
2008) (en banc). Pursuant to Section 2511(b), the trial court must determine
“whether termination of parental rights would best serve the developmental,
physical and emotional needs and welfare of the child.” In re C.M.S., 884
A.2d 1284, 1286 (Pa.Super. 2005). This Court has explained that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into [the] needs and welfare of the child.” Id. at 1287.
Here, the trial court found that termination of Mother’s and Father’s
parental rights would best serve Children’s developmental, physical, and
emotional needs and welfare. N.T., 4/2/18, at 118-19. It noted that Children
have not seen Mother and Father in two years, and stated Children did not
know Mother and Father. Id. at 119. It also noted that Children were doing
well, lived with foster parents who hoped to adopt Children, and Children were
“healthy, happy, and maturing age appropriately.” TCO at 4. We conclude its
factual findings are supported by the record, including Ms. Shaylor’s testimony
that Children were doing well with foster parents. The trial court did not abuse
its discretion in finding termination would best serve Children’s
developmental, physical, and emotional needs.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/07/2018
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