Opinion
J-S46016-19 No. 708 EDA 2019 No. 709 EDA 2019 No. 710 EDA 2019 No. 711 EDA 2019 No. 712 EDA 2019 No. 713 EDA 2019 No. 714 EDA 2019 No. 715 EDA 2019
11-25-2019
IN THE INTEREST OF: A.O. A/K/A A.A.O., A MINOR APPEAL OF: A.O., MOTHER IN THE INTEREST OF: E.O. A/K/A E.J.O., A MINOR APPEAL OF: A.O., MOTHER IN THE INTEREST OF: S.O. A/K/A S.M.O., A MINOR APPEAL OF: A.O. IN THE INTEREST OF: L.O. A/K/A L.M.O., A MINOR APPEAL OF: A.O., MOTHER IN THE INTEREST OF: L.O. A/K/A L.M.O., A MINOR APPEAL OF: A.O.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered February 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000111-2017 Appeal from the Order Entered February 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002929-2014 Appeal from the Decree Entered February 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000114-2017 Appeal from the Order Entered February 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002931-2014 Appeal from the Decree Entered February 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000112-2017 Appeal from the Order Entered February 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002928-2014 Appeal from the Decree Entered February 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000113-2017 Appeal from the Order Entered February 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-DP-0002927-2014 BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
A.O. ("Mother") appeals from the decrees and orders entered on February 6, 2019, granting the petitions filed by the Philadelphia Department of Human Services ("DHS" or the "Agency") to terminate her parental rights to her minor children, A.O. a/k/a A.A.O., (a male born in December 2004); S.O. a/k/a S.M.O. (a female born in June 2009); L.O. a/k/a L.M.O., (a female born in February 2007); and E.O. a/k/a E.J.O. (a male born in May 2011) (collectively, "the Children"), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and to change the permanency goals for the Children to adoption under the Juvenile Act, 42 Pa.C.S.A. § 6351., , We affirm.
The February 6, 2019 termination decrees as to Mother with regard to each of the Children is missing from the certified record, but the trial court stated its decrees on the record at the hearing on February 6, 2019.
We note that on November 30, 2017, the trial court also terminated the parental rights of M.O., the Children's father ("Father"). Trial Court Opinion, 4/25/19, at 1-2. Father has not filed an appeal from this decree. Id.
The trial court explained:
Mother's parental rights were not terminated as to another child, M.O., a male, born [in July 2001]. This child is 17 years old and is in placement in a Group Home through St. Francis. Mother's other child, M.O., a female, born [in September 1999], was discharged from court supervision because the child attained 18 years of age. An order for termination of court supervision was entered by th[e trial] court on 9/27/2017.Trial Court Opinion, 4/25/19, at 2 (citations and some capitalization omitted).
In its opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), the trial court set forth the factual background and procedural history of this appeal, which we adopt herein. See Trial Court Opinion, 4/25/19, at 4-29. As this matter is before us after a remand based on In re Adoption of L.B.M., 161 A.3d 172, 179-180 (Pa. 2017), we set forth only the facts and procedural background from this Court's Memorandum filed on July 20, 2018, as follows.
In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) our Supreme Court held that 23 Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal interests of any child involved in a contested involuntary termination proceeding. The Court defined a child's legal interest as synonymous with his or her preferred outcome.
In December 2014, the Philadelphia Department of Human Services (DHS) first became aware of Mother and her family when it received a report that one of Mother's other children, M.O., attended school with cuts and abrasions on his right ankle and knuckles. Mother allegedly threw crutches at M.O. in an effort to keep him from going to school, causing the open wounds to his ankle and knuckles. The report further alleged that the home was filthy and housed ten dogs, including a dead dog with puppies. Parents were unemployed, the family had a history of involvement with DHS, and three other siblings of school age were being kept home by parents. DHS visited the home and found it was without heat, had holes in the walls and doors, and trash was strewn throughout the dwelling. Numerous dogs and cats were living there in unsanitary conditions and seven children were sleeping in the same small bedroom. DHS entered a protective custody order for Children and they were placed in foster care.
On April 20, 2015, Children were adjudicated dependent, legal custody to remain with DHS. The following parental objectives were set for Mother:
(1) address and stabilize mental health by continuing treatment; (2) sign release forms for the Community Umbrella Agency (CUA) to obtain mental health background information; (3) attend appointments for Children and sign releases and consents for their treatment; (4) contact Intellectual Disability Services (IDS) to schedule intake appointment; (5) participate in Parent-Child Information Therapy (PCIT); (6) and comply with monthly, supervised visits with Children at the [A]gency. In September 2015, Mother was diagnosed with Post Traumatic Stress Disorder
(PTSD), bipolar disorder, major depressive disorder, and a learning disability. Mother also has a history of drug abuse.In Interest of A.A.O., 194 A.3d 693 (Pa. Super. 2018) (unpublished memorandum) at **2-5 (footnote omitted).
Mother's weekly, supervised visitation with Children was increased from one to four hours in January 2016. In March 2016, the court reduced Mother's supervised visitation at the [A]gency to every other week for two hours. In August 2016, Mother was discharged from a drug and alcohol program due to her failure to report for services. Mother tested positive for opiates in October 2016. At an October 25, 2016 permanency review hearing, the court determined that Mother had been minimally compliant with her parental objectives, having not completed parenting classes or obtained suitable housing. Mother tested positive for opiates again in December 2016.
On January 30, 2017, DHS filed petitions to involuntarily terminate Mother's parental rights to Children pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. On April 11, 2017, the trial court appointed a Child Advocate Attorney (CAA), Regina Charles-Asar, Esquire, for all four Children. A goal change/termination hearing was held on November 30, 2017. At the hearing, [Community Umbrella Agency ("CUA")] case manager [Mariam Colon, from Northeast Treatment Centers, ("NET");] parenting capacity evaluator, [William Russell, Ph.D., a forensic psychologist at Forensic Mental Health Services;] [] CUA case manager, [Frank Cervantes;] CUA supervisor, [Kesa Lewis]; Educational Decision Maker, [Ann Umbrecht; critical care manager, Laura Hershel, from Community Behavioral Health, ("CBH")]; and[,] Mother testified. [Attorney Charles-Asar was present, and represented the legal interests of the Children. Attorney Adrianna Alfano was present and represented the Children as their guardian ad litem ("GAL").] The court ultimately terminated Mother's parental rights to Children under sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. Mother filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. She present[ed] one issue for our consideration: Whether the trial court erred in refusing to determine if legal counsel for the Children had met with the children, had determined their legal interests, and whether counsel understood her duties as legal counsel?
In the Memorandum decision filed on July 20, 2018, this Court vacated the decrees terminating Mother's parental rights to the Children entered on November 30, 2017, because the panel was unable to discern whether the CAA, Attorney Charles-Asar, adequately considered each child's legal interest in addition to each child's best interest. Id. at 5-9. The panel noted that Attorney Charles-Asar's questions of the witnesses were not of the type that would shed light on each child's preferred outcome and that Attorney Charles-Asar did not file a brief on appeal, which made the Court's inquiry into her legal representation of the Children more difficult. Id. Accordingly, the panel vacated the termination decrees, without prejudice, and remanded the matter for an on-record inquiry as to whether Attorney Charles-Asar adequately consulted with each child and determined his or her legal interests in the matter. The panel instructed:
If the court concludes that counsel did not carry out her legal duties, as espoused in L.B.M., then the court shall order a new termination hearing to provide counsel an opportunity to advocate on each Child's behalf. If, however, the court is convinced that counsel fulfilled her duty to each Child, then it may reaffirm its original termination order.Id. at 10.
Upon remand, the trial court held a hearing on December 12, 2018, at which Mother's counsel questioned Attorney Charles-Asar regarding her ascertainment of the Children's preferred outcomes prior to the hearing on November 30, 2017. N.T., 12/12/18, at 3. Attorney Charles-Asar indicated that she met with A.O. prior to the November 30, 2017 hearing, but she did not meet with the three younger children. Id. at 3-4. The trial court then ruled that, to comply with the directive of this Court on remand, Attorney Charles-Asar was required to meet with all four Children, and the trial court would "give this [matter] another listing." Id. at 4. Notably, Mother's counsel did not object to this procedure. DHS's counsel requested the court to re-enter its termination decree as to A.O. only, since Attorney Charles-Asar had interviewed A.O. regarding his preferred outcome prior to the November 30, 2017 hearing. Id. at 5. The trial court denied the request. Id. At the conclusion of the hearing, Mother's counsel asked the trial court to consider allowing Mother supervised visitation with the Children, since the prior termination decrees were vacated. Id. at 7.
The following exchange occurred:
THE COURT: No, the record was overwhelming at the [termination of parental rights ("TPR")] hearing and[,] absent the technical issue, I have no doubt in my mind about the prior decision[;] however, the area of law has evolved ever since [ L.B.M. W]e will complete the record as required by the Appellate Court, and we'll proceed from there, but I do not find it in the best interest of the [C]hildren to re-initiate a relationship that may not continue to exist. . . .
* * *
THE COURT: I'll be guided by counsel [-] how much time do you need?
[UNKNOWN SPEAKER]: A 30[-]day date is fine.
COURT CLERK: February 6[, 2019].N.T., 12/12/18, at 7-8.
[MOTHER'S COUNSEL]: Are you looking at those as a contested or status hearing?
THE COURT: It's a status hearing because[,] if the [c]ourt is authorized to re-enter its prior order without further hearing, I may also have to reopen on certain issues.
[MOTHER'S COUNSEL]: Thank you, your Honor.
COURT CLERK: February 6, 10:30, back here.
Thereafter, on February 6, 2019, the trial court convened a status hearing, and, again, Mother's counsel did not object to the nature of the proceeding. Although called a status conference, some evidence was obtained at the February 6, 2019 hearing. Upon questioning by counsel for DHS, Attorney Charles-Asar testified to her discussions with the Children, and the preferred outcome of each of the Children. Attorney Charles-Asar testified that she originally ascertained the Children's positions prior to the November 30, 2017 hearing by speaking with the GAL for the Children, and by having a lengthy conversation with the Court-Appointed Special Advocate ("CASA"). N.T., 2/6/19, at 4-5. The CASA discussed with the Children the idea of moving forward with terminating Mother's parental rights. Id. at 5. Attorney Charles-Asar further testified that she met with A.O., L.O., and S.O. on December 17, 2018, and met with E.O. on December 20, 2018. Id. at 4. Attorney Charles-Asar testified that each of the Children stated that he or she was happy in his or her foster home, and that they wished to remain there and to be adopted. Id. Attorney Charles-Asar testified that, from her individual discussions with each of the Children in December 2018, she could confirm that her understanding of the Children's preferred outcomes at the time of the hearing on November 30, 2017, which she advocated, was the same position that they expressed to her in December 2018, i.e., the Children were happy and wished to be adopted and remain in their pre-adoptive foster homes. Id. at 5.
On cross-examination by Mother's counsel, Attorney Charles-Asar testified that on November 30, 2017, prior to the hearing, A.O. had expressed to her that he loved Mother, and that "he understands if he can't be with his mom, he is happy where he is, and that is where he wants to stay." Id. at 6. When Mother's counsel attempted to question Attorney Charles-Asar concerning whether A.O. changed his preferred outcome at the time of his December 2018 interview, the trial court sustained DHS' counsel's objection. Id. at 6-8. Mother's counsel then called Mother on direct examination to testify as to whether she saw any of the Children since November 2017, in an attempt to establish whether Mother had contradictory evidence as to A.O.'s preferred outcome; specifically, whether A.O. stated to Mother that he does not wish to be adopted. Id. at 9. The trial court sustained DHS's objection to Mother's proffered testimony based on the lack of relevancy. Id. at 9. Mother's counsel requested that the trial court allow the Children at least one visit with Mother before the court determined their legal interests, as the passage of time between the November 30, 2017 and the February 6, 2019 hearings made it more likely that the Children would feel that Mother was out of their lives. Id. at 10-11. The trial court denied the request. Id. at 11.
During the February 6, 2019 hearing, the trial court stated that it specifically recollected the termination hearing held on November 30, 2017, and that it was the court's finding at that time that Mother had "no credibility whatsoever." Id. at 12. The trial court found that Mother's testimony was "coached . . . rehearsed . . . and made to make [M]other appear in the most favorable light." Id. The trial court further found that Mother's testimony had no bearing on the truth of Mother's relationship with the Children and how she was in a position to care for them. Id. The trial court also concluded that the hearing on February 6, 2019 completed the process for which this Court had remanded the matter, which was for Attorney Charles-Asar to present information concerning the preferred outcomes of all of the Children. Id. The trial court stated:
[T]he evidence is further clear and convincing that it would be in the best interest of the [C]hildren to be adopted, that the termination of [M]other's parental rights would present no irreparable harm to the [C]hildren[,] and that it would be in their best interest to be adopted. I would reinstate my findings.Id. at 13.
Mother's counsel requested a new hearing on the basis that the language in this Court's remand order required a new hearing, because Attorney Charles-Asar did not independently ascertain the Children's preferred outcomes before the November 30, 2017 hearing, and "now that she has[,] it requires a new hearing so that she can advocate for their interest." Id. at 13. The trial court denied the request based on its interpretation of the remand order as directing the court to complete the necessary review regarding the preferences of the Children. Id. at 14. The trial court stated that the November 30, 2017 hearing was adequate and explored all of the evidentiary issues, and that the hearing provided the court with all of the information needed to make credibility and weight determinations based on the evidence. Id. at 13-14. The trial court "re-affirmed" the original termination decrees and changed the permanency goal for the Children to adoption. Id. at 15. The trial court stated, "So the rights are terminated, let me add the phrase, nunc pro tunc, back to the original termination, . . . and the goal is changed to adoption." Id.
Thus, on February 6, 2019, the trial court reinstated the decrees of involuntary termination of parental rights and orders that changed the permanency goal for the Children to adoption. On March 7, 2019, Mother timely filed notices of appeal, along with concise statements of errors complained of on appeal. This Court consolidated the appeals on April 5, 2019.
On appeal, Mother raises the following issues:
1. Did the Juvenile Court err or abuse its discretion by reinstating the TPR at a status listing, thereby denying [M]other the opportunity to subpoena her children to testify at an evidentiary hearing as to their legal interests?
2. Did the Juvenile Court err or abuse its discretion by reinstating the TPR when the [C]hildren's preferred outcome was not clear, given that the child advocate's report indicated a change from
when she had originally interviewed one or more of the [C]hildren; and her report indicated that he/she was not clear about whether or not he/she wished to be adopted?Mother's Brief at 4.
3. Did the Juvenile Court err or abuse its discretion by denying a trial de novo on the remand thereby denying the [C]hildren effective assistance of counsel in an evidentiary hearing upon the remand in which their counsel could fully participate[?]
4. Did the Juvenile Court further err or abuse its discretion by re-instating the TPR nunc pro tunc?
5. Did the Juvenile Court err or abuse its discretion in determining that Petitioner, Department of Human Services (DHS), had met its burden of proof by clear and convincing evidence under the Adoptions Act, 23 Pa.C.S. §2511 (a)(1), (2), (5), and/or (8)?
6. Did the Juvenile Court err or abuse its discretion in determining that Petitioner, DHS, had met its burden of proof that changing the child's permanency goal to adoption and terminating Mother's rights would best serve the needs and welfare of the child under 42 Pa.C.S.A.§ 6351(e) and (f); and 23 Pa.C.S. [§] 2511(b)[?]
Although Mother stated her issues somewhat differently in her concise statement, we find that she preserved the issues for our review. See Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his concise statement of errors complained of on appeal and the statement of questions involved in his brief on appeal).
Mother requests this Court to vacate and remand the involuntary termination decrees and goal change orders for an evidentiary hearing to determine whether the Children's legal interests were properly ascertained and represented in the trial court, and, if necessary, appoint new counsel for the Children and hold a new termination of parental rights/goal change hearing. Mother's Brief at 32.
In the argument portion of her brief, Mother combines her first four issues into one overarching issue: whether the trial court did not allow a thorough inquiry about, and representation of, the Children's legal interests? Mother's Brief, at 17. With regard to her sixth issue, Mother argues that the manner in which Attorney Charles-Asar ascertained the Children's true desires and legal interests fatally flawed the court's inquiry as to whether termination of parental rights would best serve the needs and welfare of the Children under 23 Pa.C.S. § 2511(b), and whether a change of the permanency goals to adoption under 42 Pa.C.S. § 6351(e) and (f) was warranted. Id. at 16. We will, therefore, address Mother's issues 1-4 and 6 together, as they are interrelated.
Mother argues that the trial court reinstated the involuntary termination decrees at a status hearing, thereby denying Mother the due process opportunity to subpoena her children to testify at an evidentiary hearing regarding their legal interests. Id. at 15. Mother contends that the Children's preferred outcome was not clear from Attorney Charles-Asar's report, and that Attorney Charles-Asar's report indicated a change from when she originally interviewed A.O. Id. at 12-15. Mother asserts that A.O. was not clear about whether he wished to be adopted. Id. Mother further argues that the trial court, by denying her request for a trial de novo, or, at the very least, an evidentiary hearing, denied the Children an opportunity for effective assistance of counsel in an evidentiary hearing in which their counsel could fully participate. Id. at 15. Mother argues that, by reinstating the TPR nunc pro tunc, the trial court validated the "structurally flawed November 2017 process" that occurred when A.O. indicated a preference for reunification and had no advocate for such an outcome. Id. For the foregoing reasons, based on In re L.B.M. and its progeny, Mother requests that this Court vacate the decrees and orders, and remand the matter for an inquiry into the Children's legal interests and their position on the change of their permanency goals. Id. at 25. With regard to her sixth issue, Mother contends that, given that A.O. informed Attorney Charles-Asar that, if he could not return to Mother he would like to be adopted by his foster parent, the trial court erred in failing to inquire whether Attorney Charles-Asar explored any legal options for permanency under section 6351 of the Juvenile Act other than goal change to adoption. Id. at 30-31.
We find that Mother waived the first four issues and her sixth issue by failing, at the hearing held on December 12, 2018, to request a trial de novo so that she could subpoena witnesses, including the Children. At the December 12, 2018 hearing, the trial court determined that, prior to the November 30, 2017 termination hearing, Attorney Charles-Asar personally interviewed only A.O., and relied on the statements of the GAL and the CASA for the other three Children with regard to their preferred outcomes. Thus, the trial court directed Attorney Charles-Asar to meet with all four Children prior to a status hearing scheduled for February 6, 2019. Mother's counsel did not object to the status hearing procedure and appeared at the February 6, 2019 hearing. She did not argue that this Court's remand order required a de novo trial until after she learned of the trial court's ruling on the termination and permanency goal change petitions at the February 6, 2019 hearing. See N.T., 2/6/19, at 13. In order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of trial. Tindall v. Friedman , 970 A.2d 1159, 1174 (Pa. Super. 2009). The purpose of the rule is that the trial court be afforded an opportunity to correct any error at the time it is made. Jackson v. Kassab , 812 A.2d 1233, 1235 (Pa. Super. 2002). Mother's counsel did not timely make a request for a new evidentiary hearing, as she should have objected and requested a de novo evidentiary hearing at the December 12, 2018 hearing if she believed that our remand order required such a hearing.
To the extent that Mother argues that she was denied the opportunity to subpoena the Children to elucidate whether Attorney Charles-Asar adequately represented their wishes, Mother did not raise the issue of subpoenaing the Children in the trial court prior to or at the February 6, 2019 hearing, nor did she seek to have them testify before the trial court. To the contrary, at both the December 12, 2018 hearing and the February 6, 2019 hearing, Mother's counsel only requested an opportunity to have the Children meet with Mother, because of the length of time that had passed during the course of the litigation, in order for the Children to determine whether their legal interests "truly are to be adopted at this time." N.T. 2/6/19, at 10-11; see also N.T., 12/12/18, at 7-8. Pa.R.A.P. 302(a) provides: "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Thus, we find that Mother waived any issue concerning the trial court's failure to afford her an opportunity to subpoena the Children by failing to raise such an issue until her brief on appeal.
Moreover, if Mother had not waived her first four issues and her sixth issue, we would find that they lack merit. In our July 20, 2018 order, this Court ordered the matter remanded for an "on-the-record determination as to whether counsel adequately consulted with each Child and determined his or her legal interests in the matter", as required by L.B.M. We stated that, if the trial court were "convinced that counsel fulfilled her duty to each Child, then it may reaffirm its original termination order." Interest of A.A.O., 194 A.3d 693 (Pa. Super. 2018) (unpublished memorandum) at *10. Only in the event that the trial court were to conclude that counsel did not carry out her legal duties as set forth in L.B.M. was the trial court to order a new termination hearing to provide counsel an opportunity to advocate on each Child's behalf. Id.
At the February 6, 2019 hearing, the trial court was satisfied that Attorney Charles-Asar's understanding of the Children's preferred outcomes at the time of the November 30, 2017 hearing, through speaking with A.O. and the Children's GAL and CASA, was consistent with the Children's preferred outcomes, as expressed directly to her in December 2018. The trial court was satisfied that, at the November 30, 2017 hearing, Attorney Charles-Asar was not hampered in her ability to advocate for the preferred outcomes of the Children because she had spoken directly to only one of them concerning the matter of preferred outcome, and that she advocated for the Children's preferred outcomes.
Essentially, Mother is arguing that the trial court should have not only directed Attorney Charles-Asar to interview the Children, but to represent them at a new evidentiary hearing, and advocate that Mother's parental rights should not be terminated. Mother relies on In re Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super. 2018), for the proposition that, where there is no basis to conclude that the child's counsel properly represented the child's legal interests, this Court will decide that the child was deprived of his or her statutory right to counsel. Mother's Brief at 25. Recently, our Court specifically overruled the decision in T.M.L.M. in In re Adoption of K.M.G., ___ A.3d ___ 2019 WL 4392506 (Pa. Super. 2019) (filed September 13, 2019) (en banc). In K.M.G., this Court, sitting en banc, stated that, where the trial court appointed counsel to represent the child in a termination case, "we have no authority to delve into the quality of the . . . representation. The Supreme Court has not authorized us to do so." Id. at *4. Specifically, we held that this Court has authority only to raise sua sponte the issue of whether the trial court appointed any counsel for the child and not the authority to delve into the quality of the representation.
Here, the trial court appointed Attorney Charles-Asar to represent the Children's legal interests, and Attorney Alfano as the Children's GAL. We find that the trial court properly found the requirements of L.B.M. and T.S. were satisfied by Attorney Charles-Asar in relation to the November 30, 2017 hearing. She gleaned the preferred outcome of three of the Children through their CASA and GAL, and directly interviewed the fourth child, then interviewed each of the Children in December 2018, after the remand from this Court. Attorney Charles-Asar confirmed that the Children's preferred outcome was that, if they could not be with Mother, then they were happy in foster care and wished to be adopted in their foster care homes. The trial court confirmed that Attorney Charles-Asar adequately represented all four of the Children at the November 30, 2017 hearing with respect to their preferred outcome. Because Mother is raising on appeal the quality of Attorney Charles-Asar's representation of the Children at the November 30, 2017 hearing, we find no merit to Mother's issues 1-4 and 6. See In re: Adoption of K.M.G., supra. The trial court proceeded on remand in accordance with the directions in this Court's Memorandum. The court ascertained whether Attorney Charles-Asar carried out her legal duties, and determined that she had done so. The court, deeming a new hearing was not necessary, properly re-entered its prior decrees, and entered orders changing the Children's permanency goals to adoption. We will not disturb the trial court's determination on appeal.
Finally, Mother contends that DHS failed to meet its burden of proving by clear and convincing evidence that it satisfied 23 Pa.C.S. § 2511(a)(1), (2), (5), or (8), because,
despite the lower court's use of wide-ranging credibility justifications which are not sufficiently supported by the record[,]5 [Mother's] improved [parenting] abilities were obvious even to DHS' expert witness[, Dr. Russell], who had conducted [Mother's] Parenting Capacity Evaluation a year before the November 2017 trial.Mother's Brief at 16.
5 "Most of the testimony was prepared, choreographed and is a connected series of lies, attempted misrepresentations, deceit, all contrived to convince this [c]ourt that [Mother] somehow is a ready, willing and able parent to parent these children. None of her story is believable." (N.T. 11/30/17, p. 328)
In reviewing an appeal from an order terminating parental rights, we adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (some citations omitted).
As [the Supreme Court] discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. [The Supreme Court] observed that, unlike 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. R.J.T., 9 A.3d at 1190. 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.
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). As we have explained, "[t]he 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." Id., quoting In re J .L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
This Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Section 2511(a) and (b) provides, in relevant part, as follows:
§ 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:
(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.
(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.
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(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
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(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.
23 Pa.C.S. § 2511.
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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), (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.
After our careful review of Mother's challenge to the trial court's termination of her parental rights with regard to section 2511(a)(1), (2), (5), and (8), and also the substantive challenge raised in Mother's sixth issue to the termination of her parental rights under section 2511(b) and the change of the Children's permanency goal to adoption under section 6351, we find no merit to her challenges. The trial court's credibility and weight determinations, and its decision to terminate the parental rights of Mother and to change the permanency goal for the Children are supported by competent, clear and convincing evidence in the record. In re Adoption of S.P., 47 A.3d at 826-827. We, therefore, affirm the termination decrees and goal change orders on the basis of the well-reasoned opinion of the trial court. See Trial Court Opinion, 4/25/19, at 33-48.
Mother argues that the trial court did not consider whether the Agency failed to make reasonable efforts to reunify this family, and whether services and/or assistance were reasonably available for Mother. Mother's Brief at 28, citing 42 Pa.C.S.A. § 6301 et seq., and 23 Pa.C.S.A. § 2511(a)(5). She contends that the documented problems with CUA's case management through the filing of the termination and goal change petitions two weeks before the original trial began is tantamount to services and assistance having not been reasonably available to Mother. For the reasons explained in the trial court opinion, we find no merit to Mother's argument concerning CUA's case management amounting to a denial of reasonably available services. See Trial Court Opinion, 4/25/19, at 35 and 44. Additionally, our Supreme Court has rejected the argument that the provision of reasonable efforts by the county children's services agency is a factor in termination of the parental rights of a parent to a child. See In the Interest of: D.C.D., a Minor , 105 A.3d 662, 672-674, 676 (Pa. 2014) (holding, "[n]either subsection (a) nor (b) requires a court to consider the reasonable efforts provided to a parent prior to termination of parental rights"). The Supreme Court noted that, as applicable to section 2511(a)(2), a court may find an agency's lack of assistance to a parent relevant to whether the parent's incapacity "cannot or will not be remedied by the parent." Id. The Court cited, as an example, a scenario in which a parent is released from a short term of incarceration, stating that the child welfare agency cannot refuse reasonable efforts to an incarcerated parent, and then points to the resulting erosion in the parental bond created by the agency as a justification for the termination of parental rights. Id. at 672. In distinguishing section 2511(a)(2) from section 2511(a)(5), the Supreme Court noted that, under the latter, the court must consider whether the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time. Id. at 673. The Supreme Court also rejected the suggestion that section 2511 of the Adoption Act should be read in conjunction with section 6351 of the Juvenile Act, particularly section 6351(f)(9), to conclude that an agency must provide reasonable efforts to enable a parent to reunify with a child prior to the termination of parental rights. Id. 673-675. In any event, the trial court found no evidence of the Agency withholding reasonable services and/or assistance from Mother in this matter. Thus, based on our Supreme Court's holding in In the Interest of: D.C.D., a Minor , we find no merit to Mother's argument.
As we rely on the trial court's opinion, a copy of said opinion must be attached to any future filings dealing with this appeal.
Decrees and orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/25/19
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