In the Int. of: M.Y., Appeal of Z.L.

J-S36032-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: M.Y., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: Z.L., MOTHER : No. 1433 EDA 2021
Appeal from the Order Entered June 21, 2021
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0002004-2018
IN THE INTEREST OF: M.J.Y., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: Z.L., MOTHER : No. 1434 EDA 2021
Appeal from the Order Entered June 22, 2021
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000134-2020
IN THE INTEREST OF: M.Y., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: Z.L., MOTHER : No. 1435 EDA 2021
Appeal from the Order Entered June 21, 2021
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0002005-2018
IN THE INTEREST OF: M.J.Y., Jr., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: Z.L., MOTHER : No. 1436 EDA 2021
Appeal from the Order Entered June 22, 2021
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000135-2020
J-S36032-21
IN THE INTEREST OF: K.M.R., Jr., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: Z.L., MOTHER : No. 1438 EDA 2021
Appeal from the Order Entered June 22, 2021
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000133-2020
BEFORE: LAZARUS, J., KING, J., AND COLINS, J.*:
MEMORANDUM BY COLINS, J.: FILED JANUARY 10, 2022
Z.L. (“Mother”) appeals from the decrees entered June 21, 2021, in the
Court of Common Pleas of Philadelphia County, which terminated involuntarily
her parental rights to her minor children, M.J.Y. (her daughter born in May
2011), M.J.Y., Jr. (her son born in May 2012); and K.M.R., Jr. (her son born
in April 2017) (collectively, “Children”). She also appeals from the orders
changing the permanency goals for M.J.Y. and M.J.Y., Jr. to adoption.1 Upon
* Retired Senior Judge assigned to the Superior Court.
1 On June 21, 2021, the trial court conducted a simultaneous hearing on DHS’s
petitions to terminate the parental rights of all parents with respect to Children
pursuant to the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and DHS’s petitions
to change Children’s permanency goals to adoption pursuant to the Juvenile
Act, 42 Pa.C.S.A. §§ 6301-6375. In decrees entered on June 22, 2021, the
trial court terminated involuntarily the parental rights of the father of M.J.Y.
and M.J.Y., Jr. K.M.R., Jr. has a different father than his siblings. The trial
court entered a decree on June 22, 2021 terminating the parental rights of
any putative but unknown fathers of K.M.R., Jr.
K.R., who DHS asserts is K.M.R., Jr.’s father, decided to sign a consent to
adoption in lieu of defending against the petition to terminate his parental
rights involuntarily filed by DHS. Thus, the trial court continued the hearing
with respect to DHS’s petition to terminate K.R.’s rights and DHS’s petition to
(Footnote Continued Next Page)
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review, we affirm the decrees terminating Mother’s parental rights to Children
and the orders changing the permanency goals to adoption for M.J.Y. and
M.J.Y., Jr.
We provide the following background. Philadelphia Department of
Human Services (DHS) became involved with the family on June 24, 2018,
after receiving a report alleging that Mother left M.J.Y. and M.J.Y., Jr., with
their maternal great-grandmother and refused to retrieve them. N.T.,
6/21/2021, at 13-14, 33; Dependency Petitions, 8/29/2018, at ¶ 5.2 Mother
change K.M.R., Jr.’s permanency goal. Mother filed an appeal from the June
21, 2021 order continuing K.M.R., Jr.’s goal change hearing, but this Court
quashed the appeal because the June 21, 2021 order was not an appealable
order. See 1437 EDA 2021.
On September 28, 2021, the trial court terminated that father’s rights to
K.M.R., Jr. and changed K.M.R., Jr.’s permanency goal to adoption. Mother
filed a separate appeal from K.M.R., Jr.’s goal change order listed before this
Court at 2181 EDA 2021. None of the fathers filed an appeal or participated
in Mother’s appeal.
2
According to the trial court, on September 24, 2018, attorneys in Children’s
dependency matters stipulated to the statement of facts in DHS’s dependency
petitions seeking to have Children adjudicated as dependent children pursuant
to the Juvenile Act. N.T., 6/21/2021, at 34. None of the attorneys objected
to the trial court’s assertion. Id. At the hearing, DHS entered Children’s
dependency dockets containing the text of the court orders as Exhibits 9-11.
However, the detailed dockets indicate that the trial court’s findings of facts
in connection to Children’s adjudications of dependency “are set forth in the
record of this case.” N.T., 6/21/2021, at DHS Exs. 9-11. None of the parties
admitted any portion of the dependency record into the termination
proceedings other than the detailed dockets.
We remind the parties and the trial court that “[t]ermination proceedings
often occur simultaneously with dependency proceedings, but these two types
of proceedings remain distinct, with their own docket numbers, records, and
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first left M.J.Y. and M.J.Y., Jr., who were seven and six years old at the time,
with Children’s maternal great-grandmother. N.T., 6/21/2021, at 33, 137.
After their maternal great-grandmother was unable to care for them, M.J.Y.
and M.J.Y., Jr., moved to their paternal grandmother’s home. Dependency
Petitions, 8/29/2018, at ¶ 5. Mother, who had abandoned M.J.Y. and M.J.Y.,
Jr., in the past, told their paternal grandmother that she should contact DHS
because Mother could not care for them and wanted to relinquish her parental
rights. N.T., 6/21/2021, at 33; Dependency Petitions, 8/29/2018, at ¶ 5.
When DHS got in contact with Mother, she told them she felt depressed
and overwhelmed, and she desired for paternal grandmother to care for M.J.Y.
and M.J.Y., Jr. Dependency Petitions, 8/29/2018, at ¶ 5. At that time, K.M.R.,
Jr., who was slightly over the age of one, remained in Mother’s care. Two
days later, the agency discovered all three Children back in Mother’s care. Id.
Mother’s home had no operable gas service in the home, prompting DHS to
require that Mother make a family arrangement. N.T., 6/21/2021, at 15;
divisions within the Court of Common Pleas.” Interest of S.S., 252 A.3d 681,
688 (Pa. Super. 2021). Because Mother appealed from the goal change orders
entered in Children’s dependency matters in addition to the termination
orders, this Court has access to Children’s dependency records. Therefore,
this Court will cite to dependency petitions in accordance with the trial court’s
representation that the parties, including Mother, previously stipulated to the
facts of those petitions. This Court cautions the parties and trial court that
this is not always the case. See id. (vacating termination decrees and
remanding for a new hearing after the trial court relied upon evidence from
dependency matter in order to terminate parental rights without the evidence
being admitted into the termination record and without a simultaneous
dependency appeal).
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Dependency Petitions, 8/29/2018, at ¶ 5. M.J.Y. and M.J.Y., Jr., went back to
their paternal grandmother’s care. Dependency Petitions, 8/29/2018, at ¶ 5.
K.M.R., Jr. initially went to his maternal grandmother’s home, but later moved
to his paternal grandmother’s home after Mother got into an altercation with
K.M.R., Jr.’s maternal grandmother.
On August 29, 2018, DHS filed a petition alleging that Children were
dependent under the Juvenile Act, 42 Pa.C.S.A. § 6302(1). On September
24, 2018, the trial court adjudicated Children dependent and transferred legal
custody to DHS. Children remained with their respective paternal
grandmothers, although eventually K.M.R., Jr. moved to the non-relative
foster home where he currently resides.
DHS arranged for the Community Umbrella Agency (CUA) to provide
services to Mother. CUA established single case plan objectives for Mother to
achieve based on the issues Mother was facing. The objectives included
attending parenting classes, obtaining suitable and safe housing, obtaining
employment, obtaining a mental health evaluation and complying with the
recommendations, and regularly attending visits with Children. N.T.,
6/21/2021, at 16; see also DHS Exs. 9-11 (Children’s permanency review
orders indicating the trial court mandated similar objectives).
Over Children’s almost three years in foster care, the trial court
repeatedly determined in Children’s dependency matters that Mother had no
or minimal compliance with her objectives and made no or minimal progress
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towards rectifying the conditions that brought Children into care. DHS Exs.
9-11. She did obtain appropriate housing in 2020. N.T., 6/21/2021, at 16.
She also obtained employment driving for a ride service, although she did not
provide a pay stub to the agency in response to the agency’s last request. Id.
at 16-17. She began but did not complete parenting classes. Id.
Mother’s mental health evaluation had revealed a need for outpatient
therapy to address her major depressive disorder, but Mother did not attend
such a program. Id. at 18-20. The only mental health treatment Mother
obtained was spending a week or two in an inpatient facility sometime in 2020.
Id. at 25. Mother blamed her failure to obtain outpatient treatment on issues
she had with obtaining insurance, but DHS provided her with information on
providers who would treat Mother without a cost and Mother still did not take
advantage of those programs. Id. at 20.
Mother’s mental health remained an ongoing area of concern. In the
DHS caseworker’s view, at times Mother appeared eager to engage and get
Children back, but other times she appeared upset, crying, and depressed.
N.T., 6/21/2021, at 24, 33. In early 2020, Mother attempted to take M.J.Y.
and M.J.Y., Jr., from paternal grandmother’s custody without authorization.
When she was stopped from doing so, Mother entered paternal grandmother’s
house and attempted to slit her wrists with a can opener. N.T., 6/21/2021,
at 31-32. Paternal grandmother called the police, who took Mother to a
hospital. When the DHS caseworker spoke to Mother, she told the caseworker
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she planned to stay and obtain mental health treatment. Id. at 30. Instead,
Mother left the hospital, returned to Paternal Grandmother’s house, and
“smashed up” the car of Paternal Grandmother’s neighbor. Id. Paternal
Grandmother obtained a restraining order against Mother, which has since
expired. Id.
In addition to her mental health struggles – or perhaps because of such
struggles - Mother failed to visit Children regularly. Initially, she had the
opportunity to visit Children two times a week at the agency, but she only
visited sporadically. Id. at 21-23. In the three months prior to the hearing
to terminate her parental rights, Mother missed 15 out of 17 visits offered to
her. Id. She never made enough progress to progress to unsupervised visits,
let alone reunification. Id. at 28.
Based upon Mother’s lack of progress, DHS filed petitions to terminate
Mother’s parental rights on February 21, 2020, as well as petitions to change
Children’s permanency goal to adoption. The trial court conducted a hearing
on the petitions on June 21, 2021. Children, who were four, nine, and ten at
the time of the hearing, were represented by an attorney serving as guardian
ad litem and an attorney serving as legal counsel.3
3 At the hearing, legal counsel represented to the court that Children had the
following positions. M.J.Y.’s “first wish would be to go with [Mother],” but if
that were not possible, M.J.Y. wished to stay with her paternal grandmother
and brother M.J.Y., Jr. and for her paternal grandmother to adopt her. N.T.,
6/21/2021, at 83-84. She appeared to understand the concept of adoption.
Id. It was not clear whether the nine-year-old child, M.J.Y., Jr., understood
(Footnote Continued Next Page)
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During the hearing, DHS presented the testimony of a CUA worker who
was assigned to the family’s case, and introduced Mother’s psychological
evaluation, CEU progress reports, and the docket from Children’s dependency
matters, which contained the text of the various court orders. N.T.,
6/21/2021, at DHS Exs. 1-2, 8-11. In addition to the history discussed supra
regarding Mother’s lack of progress on her case objectives, DHS presented
testimony regarding Children’s needs and welfare. Mother testified on her
own behalf.
At the conclusion of the hearing, the juvenile court entered a decree
terminating the parental rights of Mother pursuant to 23 Pa.C.S.A.
§§ 2511(a)(1), (a)(2), (a)(5), (a)(8) and (b) of the Adoption Act, 23 Pa.C.S.A.
§§ 2101-2938. Mother timely filed a notice of appeal, along with a concise
statement of errors complained of on appeal.
On appeal, Mother raises the following arguments: (1) whether the trial
court erred by terminating Mother’s parental rights without clear and
convincing evidence to support termination under 23 Pa.C.S.A. §§ 2511(a)(1),
the concept of adoption; his wish was more focused on simply being able to
remain in his paternal grandmother’s care. Id. The four-year-old child,
K.M.R., Jr., referred to his foster mother as his mother, seemed too young to
understand adoption, and did not mention Mother when asked about the
people in his life. Id.
Children’s guardian ad litem filed a brief indicating that affirming the
termination of parental rights order is in Children’s best interests. We note
with disapproval that legal counsel did not file a brief on Children’s behalf on
appeal or otherwise advocate for Children’s position.
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(2), (5), and (8); and (2) whether the trial court erred by terminating Mother’s
parental rights without clear and convincing evidence that termination would
best serve the needs and welfare of Children pursuant to 23 Pa.C.S.A.
§ 2511(b).4 Mother’s Brief at 4.
We review these issues mindful of our well-settled standard of review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
4 Mother filed notices of appeal from the orders changing M.J.Y. and M.J.Y.,
Jr.’s permanency goals to adoption in their dependency matters. However,
Mother did not include challenges to the goal changes in her issues presented
or the argument section of her brief. Her failure to develop these claims
renders them waived. Interest of D.R.-W., 227 A.3d 905, 917 (Pa. Super.
2020). Accordingly, we only consider the merits of her arguments relating to
the termination of her parental rights pursuant to the Adoption Act.
Nevertheless, even if Mother had preserved and presented issues regarding
the change of her permanency goal pursuant to the Juvenile Act, we note that
the court may terminate parental rights even if the permanency goal remains
reunification. See In re Adoption of S.E.G., 901 A.2d 1017, 1029 (Pa.
2006). Moreover, any goal-change challenge would be moot in light of our
decision to affirm the court’s termination decrees. D.R.-W., 227 A.3d at 917
(quoting In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“An issue before
a court is moot if in ruling upon the issue the court cannot enter an order that
has any legal force or effect.”)).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
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 [subs]ection 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to [subs]ection 2511(b): determination of
the needs and welfare of the child[.]
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the juvenile court terminated Mother’s parental rights
pursuant to subsections 2511(a)(1), (2), (5), (8), and (b). We need only
agree with the court as to any one subsection of 2511(a), as well as subsection
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Here, we analyze the court’s decision to terminate under
subsections 2511(a)(8) and (b), 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:
***
(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.
***
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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. 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) … 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 summarized the requirements of subsection 2511(a)(8) as
follows.
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(8), the following factors must be demonstrated: (1) [t]he
child has been removed from parental care for 12 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).
Regarding subsection (a)(8), Mother argues that she remedied “the two
main conditions” necessitating Children’s removal by obtaining housing and
employment. Mother’s Brief at 15. She notes that she was only one class shy
of completing parenting classes. Id. at 15-16. She emphasizes that the
pandemic and her lack of insurance inhibited her ability to attend mental
health treatment, and claims she calls every day to try to obtain a therapist.
Id. at 15-16 (citing N.T., 6/21/2021, at 131). Furthermore, in her view, she
has changed since Children came into care. Id. at 16.
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The trial court, on the other hand, offered the following analysis to
support its decision to terminate Mother’s parental rights under subsection
(a)(8). There is no dispute that Children have been removed from Mother’s
care for more than 12 months, having been legally removed from Mother’s
care in 2018. The trial court determined after three years, Mother still had
not remedied the conditions that brought Children into care. According to the
trial court, Mother “lacked the capacity to address her Children’s basic
emotional and physical needs,” noting her “continuing disregard of parental
duties,” her “tendency to abandon her Children with relatives for extended
time periods,” her refusal or inability “to address her mental health problems”
by not obtaining treatment, her failure to complete parenting classes, and her
“rambling, unconvincing, and self-serving” testimony. Trial Court Opinion,
9/16/2021, at 5-7.
We discern no abuse of discretion in the trial court’s conclusion that
Mother had not remedied the conditions that brought Children into care. The
record shows that at the time of Children’s removal, Mother was struggling
with her mental health and overwhelmed by parenting. She left the eldest
two children with family and spoke of relinquishing her parental rights, only
to retrieve them shortly thereafter to take them to live in a home with no gas
service. Mother’s mental health struggles have been an ongoing concern
throughout the time Children were in care. Other than short-term inpatient
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treatment, Mother did not obtain treatment to address her mental health,
even though DHS told her where she could obtain treatment without cost.
Thus, despite Mother’s arguments, DHS proved clearly and convincingly
that Mother has not remedied all conditions that brought Children into care,
including her mental health, which undoubtedly affects all other issues. See
In re D.A.T., 91 A.3d 197, 205-06 (Pa. Super. 2014) (observing that the
agency may meet its burden under subsection 2511(a)(8) if a parent has not
remedied each of the initial conditions). Moreover, despite Mother’s plea that
she has changed, “[t]his 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). Accordingly, the trial court did not abuse its discretion by
determining DHS met its burden under subsection(a)(8).5
We now examine the trial court’s determination that termination of
parental rights best served Children’s needs and welfare. We have explained
the analysis under subsection 2511(b) as follows.
[Subs]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
bonding analysis and the term “bond” is not defined in the
Adoption Act. Case law, however, provides that analysis of the
emotional bond, if any, between parent and child is a factor to be
considered as part of our analysis. While a parent’s emotional
bond with his or her child is a major aspect of the subsection
5As our analysis of the last prong of subsection 2511(a)(8) is similar to our
analysis under subsection 2511(b), we will address the last prong infra.
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2511(b) best-interest analysis, it is nonetheless only one of many
factors to be considered by the court when determining what is in
the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quotation
marks and citations omitted).
Parental rights may be terminated notwithstanding the existence of a
parent-child bond. When examining the effect upon a child of severing a bond,
courts must examine whether termination of parental rights will destroy a
“necessary and beneficial relationship,” thereby causing a child to suffer
“extreme emotional consequences.” In re E.M., 620 A.2d 481, 484-85 (Pa.
1992).
Here, the trial court examined the evidence of record and concluded that
Children’s primary bond was with their respective pre-adoptive kinship and
foster parents, not Mother, and that Children would not suffer irreparable
emotional harm if Mother’s parental rights were terminated. See Trial Court
Opinion, 9/16/2021, at 7. Further, the trial court noted that Mother has been
unable to provide Children with a healthy, safe environment or meet their
emotional, physical, and developmental needs for almost three years. Id. at
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7-8. Children were bonded with their kinship and foster parents, and they
have experienced stability in their care. Id.Based on the evidence of record, we discern no abuse of discretion in
the trial court’s conclusions. Children have been in stable care for almost
three years with caregivers who consistently meet their needs. Mother’s
failure to visit Children consistently surely impacted her relationship with
Children. It is no surprise that only the eldest child, M.J.Y., had any semblance
of a bond with Mother. Despite some positive aspects of their relationship,
the trial court did not abuse its discretion in concluding the relationship M.J.Y.
has with her kinship parent is the one to protect over the relationship she has
with Mother. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). We agree
with the trial court that nothing in the record suggests that terminating
Mother’s parental rights would cause Children, including M.J.Y., to suffer
extreme emotional consequences and sever a relationship that is necessary
to them. Therefore, the trial court did not abuse its discretion by determining
that Children’s needs and welfare was best served by terminating Mother’s
parental rights.
Based upon the foregoing, we conclude the trial court did not err or
abuse its discretion by terminating Mother’s parental rights. Mother waived
her challenge to the change of the permanency goals for M.J.Y. and M.J.Y., Jr.
to adoption. Accordingly, we affirm the decrees terminating Mother’s parental
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rights to Children and affirm the orders changing M.J.Y. and M.J.Y., Jr.’s
permanency goals to adoption.
Decrees and orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2022
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