Opinion
983 EDA 2023 985 EDA 2023 986 EDA 2023 987 EDA 2023 J-S40003-23
01-22-2024
IN THE INTEREST OF: L.R.J., A MINOR APPEAL OF: L.J., MOTHER IN THE INTEREST OF: L.L.J., A MINOR APPEAL OF: L.J., MOTHER IN THE INTEREST OF: K.J., A MINOR APPEAL OF: L.J., MOTHER IN THE INTEREST OF: K.S.J., A MINOR APPEAL OF: L.J., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Decree Entered March 21, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000081-2019, CP-51-AP-0000080-2019, CP-51-DP-0000679-2017, CP-51-AP-0000079-2019
BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J. [*]
MEMORANDUM
NICHOLS, J.
Appellant L.J. (Mother) appeals from the orders granting the petitions filed by the Philadelphia Department of Human Services (DHS) to involuntarily terminate Mother's parental rights to her minor children, K.S.J., born November 2011, and twins L.L.J. and L.R.J., born June 2015, (collectively, the Children) and to change K.S.J.'s permanency goal from reunification to adoption. Mother argues that DHS failed to present clear and convincing evidence supporting the termination of her parental rights or K.S.J.'s goal change to adoption. We affirm.
We note that although the order also terminated Father's parental rights, he is not a party to the instant appeal.
Mother's appeal relates to the termination of her parental rights to Children and the goal change pertaining to K.S.J. The permanency goals for L.L.J. and L.R.J. are not a part of this appeal.
Briefly, DHS has been involved with Mother since January 25, 2017 when DHS received a report alleging lack of supervision and inadequate housing in Mother's residence. See N.T. Termination Hr'g, 3/21/23, at 29. Specifically, the report alleged that then-one-year-old L.L.J. had been taken to the hospital after suffering from a burn injury. Id. Approximately one month later, DHS received a second report alleging that the other twin, L.R.J., had suffered a leg fracture while she was in Mother's care. Id.
On February 21, 2017, DHS obtained Orders of Protective Custody (OPC) for L.L.J. and L.R.J. On March 2, 2017, L.L.J. and L.R.J. were adjudicated dependent and fully committed to DHS's custody. At that time, Mother was ordered to complete a Parenting Capacity Evaluation (PCE), undergo a psychoeducational evaluation, and engage at the Achieving Reunification Center (ARC) for housing, parenting, and employment services. The trial court also granted Mother weekly supervised visitation.
On March 16, 2017, DHS filed a petition alleging that K.S.J. was also a dependent child. On March 22, 2017, K.S.J. was adjudicated dependent and fully committed to DHS custody. Thereafter, the trial court regularly held status hearings to confirm that the Children's placement continued to be necessary and appropriate and that DHS and Community Umbrella Agency (CUA) made reasonable efforts to finalize the Children's permanency plans.
On June 10, 2022, DHS filed a petition to involuntarily terminate Mother's parental rights to the Children and to change K.R.J.'s permanency goal to adoption. At the termination hearing on March 21, 2023, the trial court heard testimony from CUA case manager Hector Vazquez, CUA case manager supervisor Summer Mills, and Mother.
Mr. Vazquez explained that Mother's single case plan (SCP) objectives were to attend visitation, obtain housing, verify employment, allow CUA to access her housing, engage in intellectual disability services (IDS), participate in mental health services, and complete a parenting capacity evaluation (PCE). N.T. Termination Hr'g, 3/21/23, at 31. Mr. Vazquez stated that at the time of the termination hearing, Mother had failed to obtain appropriate housing, attend mental health treatment, engage with IDS, provide recent verification of her employment, or complete the PCE. Id. at 35-37, 41-42. In light of Mother's failure to complete her SCP objectives, Mr. Vazquez also recommended that any visitation remain supervised by the agency. Id. at 35-37. Mr. Vazquez concluded that Mother's compliance and progress with her SCP objectives had been minimal throughout the life of the case. Id. at 46. Additionally, Mr. Vazquez indicated that the Children could not be safely returned to Mother's care in light of Mother's inconsistency with her SCP objectives and the fact that Mother had not allowed Mr. Vazquez to evaluate the home, which was previously deemed unsuitable for the Children. Id. at 46.
Finally, Mr. Vazquez testified that he had ruled out the possibility of Mother's reunification with the Children and concluded that the Children would not experience any irreparable harm if Mother's parental rights were terminated. Id. at 47. Additionally, he stated that the Children were in pre- adoptive homes and were bonded with their respective kinship providers, who were meeting the Children's needs. Id. at 49-50, 52-54.
Ms. Mills testified that Mother was directed to engage with IDS after her 2017 psychological evaluation, which stated that due to "[M]other's extremely low cognitive functioning that she would not be able to parent the children without direct long-term assistance." Id. at 100. However, Ms. Mills indicated that at the time of the termination hearing, Mother had not yet completed her IDS requirement. Id. at 100-102.
Specifically, Ms. Mills noted that Mother had been scheduled to meet with IDS in February of 2022, at which time IDS would "determine if appropriate services were needed." N.T. Termination Hr'g at 100. However, Mother failed to attend the appointment. Id. Ms. Mills stated that after the missed appointment in 2022, "Mr. Vazquez made several attempts to engage [M]other with IDS" and that once Mr. Vazquez was able to obtain the necessary documentation, "it was sent to IDS and we got a confirmation about a week ago that they are assessing her needs and it could take up to three weeks." Id. at 101. However, Ms. Mills stated that she had concerns about waiting for a determination from IDS "because the case has been open for five years. At this point [M]other has not made the effort over the last few years that I have been on the case to engage with services." Id. at 102.
At the conclusion of the testimony, the trial court placed its findings of fact and conclusions of law on the record. Id. at 161-167. Initially, the trial court noted that the "case has been in the system for almost six years. The evidence that has been presented has shown that [Mother] did not testify credibly in contrast to Ms. Mills and Mr. Vazquez." Id. at 161. Further, the trial court reiterated that Mother had failed to comply with her permanency objectives throughout the life of the case. Id. at 164. Ultimately, the trial court concluded that termination of Mother's parental rights was warranted under 23 Pa.C.S. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). Id. at 167-68. The court also concluded that changing K.R.J.'s permanency goal to adoption was in K.R.J.'s best interests. Id. at 166-67.
Mother filed timely notices of appeal and complied with Pa.R.A.P. 1925(a)(2)(i). In lieu of a Rule 1925(a) opinion, the trial court issued a notice of compliance with Rule 1925(a) in which it referred to sections from the notes of testimony where the court stated its reasons for terminating Mother's parental rights on the record. See Trial Ct. Rule 1925(a) Order, 6/15/23, at 1-2 (unpaginated).
We emphasize that our standards of review require deference to the trial court's findings of fact and credibility determinations and that, generally, this requires the filing of an opinion pursuant to Pa.R.A.P. 1925(a). See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (noting that "there are clear reasons for applying an abuse of discretion standard of review in [dependency and termination of parental rights] cases" and acknowledging 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" (citations omitted)); see also In re S.K.L.R., 256 A.3d 1108, 1124 (Pa. 2021) (emphasizing that "[w]hen a trial court makes a 'close call' in a fact-intensive case . . . the appellate court should not search the record for contrary conclusions or substitute its judgment for that of the trial court").
On appeal, Mother raises the following issues for our review:
1. Whether the trial court erred by terminating the parental rights of [M]other pursuant to 23 Pa.C.S. § 2511(a)(1) without clear and convincing evidence of [M]other's intent to relinquish her parental claim or refusal to perform her parental duties.
2. Whether the trial court erred by terminating the parental rights of [M]other pursuant to 23 Pa.C.S. § 2511(a)(2) without clear
and convincing evidence of mother's present incapacity to perform her parental duties.
3. Whether the trial court erred by terminating the parental rights of [M]other pursuant to 23 Pa.C.S. §§ 2511(a)(5) and (8) without clear and convincing evidence to prove that reasonable efforts were made by [DHS] to provide mother with additional services and that the conditions that led to placement of the children continue to exist.
4. Whether the trial court erred by terminating the parental rights of [M]other pursuant to 23 Pa.C.S. § 2511(b) without clear and convincing evidence that there is no parental bond between Mother and [C]hildren and that termination would serve the best interest of [C]hildren.
5. Whether the trial court erred by changing the permanency goal to adoption pursuant to 42 Pa.C.S. § 6351 without clear and convincing evidence that adoption is in [C]hildren's best interest.
6. Whether the trial court erred by changing the permanency goal to adoption pursuant to 42 Pa.C.S. § 6351 without clear and convincing evidence that reasonable efforts were made by the servicing agency to reunify [C]hildren with [M]other.
7. Whether the trial court erred by changing the permanency goal to adoption in contravention of the mandate of 42 Pa.C.S. § 6302 to preserve the unity of the family whenever possible.
Mother's Brief at 8.
In her first claim, Mother argues that DHS failed to present clear and convincing evidence to support termination under Section 2511(a)(2). Id. at 15. In support, Mother argues that although Mr. Vazquez stated that Mother never completed the PCE, Mr. Vazquez also admitted that he "had no documentation from the purported service provider to prove that [M]other did not attend the evaluation." Id. Mother asserts that "[w]ithout documentation of [M]other's alleged failure to attend, or even an identification of the presumed service provider, the evidence presented does not meet the requisite clear and convincing threshold." Id. Therefore, Mother concludes that Mr. Vazquez's "unsupported hearsay testimony does not establish a basis to terminate mother's parental rights under [S]ection 2511(a)(2) because there is no clear and convincing evidence of present incapacity, or whether the conditions that contributed to her previous incapacity were remedied." Id.
We begin with 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). "[T]he trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence." In re Q.R.D., 214 A.3d 233, 239 (Pa. Super. 2019) (citation omitted).
Termination of parental rights is governed by Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 2101-2938, 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 Section 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 Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We note that we need only agree with the trial court as to any one subsection of Section 2511(a), as well as Section 2511(b), to affirm an order terminating parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Section 2511(a)(2) provides 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:
* * *
(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.23 Pa.C.S. § 2511(a)(2).
To satisfy the requirements of [Section] 2511(a)(2), the moving party 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. The
grounds for termination are not limited to affirmative misconduct, but concern parental incapacity that cannot be remedied.In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citations and quotation marks omitted).
Further, this Court has explained:
The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are "not limited to affirmative misconduct." In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).
Unlike subsection (a)(1), subsection (a)(2) does not emphasize a parent's refusal or failure to perform parental duties, but instead emphasizes the child's present and future need for essential parental care, control or subsistence necessary for his physical or mental well-being. Therefore, the language in subsection (a)(2) should not be read to compel courts to ignore a child's need for a stable home and strong, continuous parental ties, which the policy of restraint in state intervention is intended to protect. This is particularly so where disruption of the family has already occurred and there is no reasonable prospect for reuniting it.
In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (internal citations and quotation marks omitted).
Thus, while "sincere efforts to perform parental duties," can preserve parental rights under subsection (a)(1), those same efforts may be insufficient to remedy parental incapacity under subsection (a)(2). "Parents are required to make diligent efforts toward the reasonably prompt assumption of full parental responsibilities." [A.L.D., 797 A.2d at 340]. A "parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous." Id.In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010) (some citations omitted and formatting altered).
Here, the trial court explained:
This case has been in the system for almost six years. The evidence that has been presented has shown that [Mother] did not testify credibly in contrast to Ms. Mills and Mr. Vazquez. [Mother] seems to not take any responsibility and despite her being at multiple hearings where it's clear that court orders made specific referral for [Mother] to continue with the PCE Evaluation, to avail herself of IDS Services [Mother] elected not to do those things.
Most telling is the document that [M]other's counsel introduced as Mother's [Exhibit] 1, which indicates that [on] June 24, 2021, [Mother] was in touch with someone, and someone had reached out to her with regard to IDS Services. [Mother] did not follow up on that until March of this year.
N.T. Termination Hr'g at 161-62.
With respect to Section 2511(a)(2), the trial court concluded:
[Mother] is not in any position today to be reunified with [C]hildren th[a]n she was at the time the children came into care.
The testimony today is that she's in a one-bedroom apartment that hasn't been assessed. [Mother] testified she's working on a house. But this has been six years.
[Mother] has not demonstrated that she has the ability to be able to parent these children. She's not actively participated despite coming to court for fifteen occasions [Mother] has not followed the case plan objectives or the [c]ourt's instructions in order to avail herself of the necessary services that were identified when she had her original BHS Evaluation in 2017 in order to make her capable of safely parenting these children.
She's not availed herself to take the necessary steps in order to do that throughout the life of this case.Id. at 163-64.
Following our review, we conclude that the trial court's findings are supported by competent, clear, and convincing evidence in the record, and we find no error in the court's legal conclusions. See T.S.M., 71 A.3d at 267; see also L.M., 923 A.2d at 511. The record confirms that Mother has made minimal progress with her SCP objectives during the six-year period in which the Children have been in DHS's care. See N.T. Termination Hr'g at 46. Specifically, Mother has failed to secure adequate housing, attend mental health treatment, verify her employment, engage with IDS, or complete the PCE. See id. at 35-37, 41-42. Although Mother has attended visits with the Children, the record supports the trial court's conclusion that "[Mother] is not in any position . . . to be reunified with [C]hildren th[a]n she was at the time the children came into care." See id. at 161.
Additionally, although Mother claims that Mr. Vazquez's testimony about Mother's failure to complete the PCE was "hearsay," Mother did not object to that testimony at trial. See N.T. Termination Hr'g at 31, 36, 37-38. Therefore, she has failed to preserve that claim for appeal. See Pa.R.A.P. 302(a) (stating that "issues not raised in the trial court are waived and cannot be raised for the first time on appeal"); see also Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008) (reiterating that "[i]n order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court"). Further, Mother has failed to identify any authority, nor are we aware of any, that requires DHS to present a completed PCE in order to demonstrate parental incapacity.
Therefore, on this record, we conclude that DHS has established by clear and convincing evidence that Mother has a repeated and continued incapacity, Mother's incapacity has caused the Children to be without essential parental care, control or subsistence, and the cause of Mother's incapacity cannot be remedied. See C.M.K., 203 A.3d at 262; see also Z.P., 994 A.2d at 1117 (explaining that Section 2511(a)(2) emphasizes a "child's present and future need for essential parental care, control or subsistence necessary for his [or her] physical or mental well-being" (citation omitted)).
For these reasons, we discern no abuse of discretion by the trial court in concluding that termination was appropriate under Section 2511(a)(2). Accordingly, Mother is not entitled to relief on this claim.
Section 2511(b)Mother also argues that DHS failed to present clear and convincing evidence to prove that termination was in the Children's best interests. Mother's Brief at 17. Mother asserts that she has "established a strong emotional bond between herself and the children" and that "she can provide for the children's needs, as she had prior to their removal." Id. at 18. Mother also contends that termination "would not best serve the developmental, physical and emotional needs of the [C]hildren" because "Mother has a strong emotional bond with her children, and termination of [M]other's parental rights would severely and irreparably harm the children emotionally." Id.
Section 2511(b) provides as follows:
(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. . . .23 Pa.C.S. § 2511(b).
"[T]he focus in terminating parental rights is on the parent, under Section 2511(a), whereas the focus in Section 2511(b) is on the child." In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc) (citation omitted). This Court has explained:
While a parent's emotional bond with his or her child is a major aspect of the subsection 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, . . . the trial court should consider the importance of continuity of relationships . . .In re C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations omitted and formatting altered), abrogated in part on other grounds by In re K.T., 296 A.3d 1085 (Pa. 2023).
Our Supreme Court has stated that "if the child has any bond with the biological parent, the court must conduct an analysis of that bond, which 'is not always an easy task.'" K.T., 296 A.3d at 1106 (quoting T.S.M., 71 A.3d at 267). In K.T., our Supreme Court explained that "a court conducting the Section 2511(b) needs and welfare analysis must consider more than proof of an adverse or detrimental impact from severance of the parental bond." Id. at 1113. Indeed, the K.T. Court emphasized that "the parental bond is but one part of the overall subsection (b) analysis, which includes a determination of whether the bond is necessary and beneficial to the child, i.e., whether maintaining the bond serves the child's developmental, physical, and emotional needs and welfare." Id.
"Common sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents." T.S.M., 71 A.3d at 268 (citation omitted). More specifically, courts must consider "the child's need for permanency and length of time in foster care[;] whether the child is in a preadoptive home and bonded with foster parents; and whether the foster home meets the child's developmental, physical and emotional needs, including intangible needs of love, comfort, security, safety, and stability." K.T., 296 A.3d at 1113 (footnote omitted).
In weighing the bond considerations pursuant to Section 2511(b), "courts must keep the ticking clock of childhood ever in mind." T.S.M., 71 A.3d at 269. "Children are young for a scant number of years, and we have an obligation to see to their healthy development quickly. When courts fail . . . the result, all too often, is catastrophically maladjusted children." Id.
Here, the trial court explained:
With regards to [Section] 2511[(b)], while the testimony was the Children may enjoy their visits with [Mother] there's no indication that there is a parental bond. [Mother] did not even know that her children were receiving IEPs. She is not aware of the
[C]hildren's medical needs. She's not making the inquiries to the caregivers. There's no indication that these children looked to their [Mother] to meet any of their parental needs. As TPR
counsel testified these children are not interested in reunification but rather adoption. I don't find that the [C]hildren would suffer irreparable harm and therefore [DHS] has met it's burden as [to M]other . . . under 2511[(b)].
The record reflects that the trial court appointed separate attorneys to represent the Children's best interests and legal interests. See generally In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017).
N.T. Termination Hr'g at 166-67 (some formatting altered).
Based on our review of the record, we discern no abuse of discretion by the trial court in concluding that termination of Mother's parental rights would best serve the Children's developmental, physical, and emotional needs and welfare. See T.S.M., 71 A.3d at 267. Although Mother stated that she was bonded with the Children, the trial court credited Mr. Vazquez's testimony that the Children did not have a necessary and beneficial relationship with Mother. See N.T. Termination Hr'g at 52, 53, 55. This Court must accept the trial court's findings of fact and credibility determinations if they are supported by the record, and this Court may not substitute its judgment for that of the trial court in such matters. See S.K.L.R., 256 A.3d 1124; T.S.M., 71 A.3d at 267.
Further, as our Supreme Court explained in K.T., an analysis under Section 2511(b) is not limited to whether severing the parent-child bond will have a detrimental effect on the child. See K.T., 296 A.3d at 1113. The trial court must also consider other factors such as the child's need for permanency, the length of time the child has been in foster care, whether the child is in a preadoptive home, the child's bond with foster parent[s], and whether the foster home "meets the child's developmental, physical and emotional needs, including intangible needs of love, comfort, security, safety, and stability." See id.
Here, Mr. Vazquez testified that L.L.J. and L.R.J. are in the same pre-adoptive kinship placement, are doing well, and share a bond with their kinship parent, who they refer to as "mom." Id. at 52-59. Likewise, Mr. Vazquez stated that K.R.J. has been in the same kinship placement "for a number of years," is doing well, and shares a good relationship with her kinship parent, who K.R.J. depends on for "just about everything." Id. at 49-50. Finally, both Ms. Mills and the Children's TPR counsel indicated that the Children wanted to be adopted by their respective foster parents. Id. at 106, 152. Therefore, we agree with the trial court that DHS presented clear and convincing evidence demonstrating that termination of Mother's parental rights would the Children's best interests. See T.S.M., 71 A.3d at 267; L.M., 923 A.2d at 511.
In Mother's remaining claims, she asserts that the trial court abused its discretion by changing K.R.J.'s permanency goal to adoption. Mother's Brief at 19-21. Given our disposition affirming the termination decrees, Mother's issues pertaining to the trial court's goal change order is moot. See In the Interest of D.R.- W., 227 A.3d 905, 917 (Pa. Super. 2020) (stating that "[a]n 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") (citation omitted).
For these reasons, we conclude that Mother is not entitled to relief. Accordingly, we affirm.
Orders affirmed.
Jurisdiction relinquished.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.