Opinion
J-S09015-18 No. 1625 MDA 2017
07-12-2018
IN THE MATTER OF L.R.S., A MINOR APPEAL OF: S.L.S., BIOLOGICAL MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree and Order Entered May 18, 2017 in the Court of Common Pleas of Dauphin County
Orphans' Court at Nos.: 25-AD-2017 CP-22-DP-0000264-2015 BEFORE: GANTMAN, P.J., McLAUGHLIN, AND PLATT, JJ. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to Superior Court.
S.L.S. (Mother) appeals the decree and order of the Court of Common Pleas of Dauphin County (trial court), entered May 18, 2017, that involuntarily terminated her parental rights to her daughter, L.R.S. (Child) (born in October of 2015), under the Adoption Act, 23 Pa.C.S.A. § 2511, and changed Child's goal to adoption under the Juvenile Act, 42 Pa.C.S.A. § 6351. We affirm.
Child was placed in the neonatal intensive care unit after she was born when she tested positive for cocaine, methadone, and PCP. ( See N.T. Hearing, 5/18/17, at 24). When the hospital discharged Child in October of 2015, Dauphin County Children and Youth Services (CYS) placed her in foster care. ( See id. at 14, 25).
Mother appeared at a shelter care hearing on October 22, 2015, under the influence of drugs. The trial court continued the hearing when Mother refused a drug screen. ( See id. at 41). Mother appeared under the influence at the re-scheduled hearing on October 27, 2015. ( See id.). On the day Child was adjudicated dependent, November 9, 2015, Mother tested positive for cocaine and methadone. ( See id. at 28).
CYS obtained court authorization for Child to participate in early intervention services in December of 2015, when CYS could not locate Mother. ( See id. at 50-51).
Mother was incarcerated from December 22, 2015, to February 22, 2016. ( See id. at 51). Mother's first visit with Child occurred on April 11, 2016. ( See id. at 30). Mother had her second visit on April 18, 2016. ( See id .). Mother did not see Child again until October 3, 2016. ( See id. at 32).
Our review of the record reveals that Mother's short period of incarceration was not a material contributing factor to the conditions that led to the removal of Child from her care.
On May 24, 2016, the trial court found aggravated circumstances against Mother because of her lack of sustained contact with Child. ( See id. at 25-26). During the nearly nineteen months Child has been in foster care, Mother has chosen to visit with her only ten times. ( See id. at 39).
At the time of the hearing, Mother was thirty-two years old. She admitted to CYS that she has used drugs since she was nineteen. ( See id. at 85). To address her substance abuse, Mother was required to provide CYS with three drug screens per week. ( See id. at 42). When CYS filed its petition to terminate Mother's parental rights, Mother had provided thirty of the required 217 drug screens. ( See id. at 43). CYS assumes that missed screens are positive. ( See id. at 44). Mother was in the Suboxone program at the Discovery House, a methadone maintenance facility, but had not completed that program and was, therefore, unable to begin drug-free counseling. ( See id. at 103-04).
Mother began treatment for her mental health concerns in March of 2016. ( See id. at 68, 137). From March 2016 through April 2017, Mother attended six of twelve scheduled appointments. ( See id. at 68). Mother was unsuccessfully discharged from mental health case management services through the Case Management Unit (CMU). ( See id. at 69). Mother testified that she re-started services through CMU the week prior to the termination hearing to assist her with housing. ( See id. at 136-37).
Mother was on probation because of a felony possession with intent to deliver conviction and a misdemeanor terroristic threats conviction. ( See id. at 87). Mother's probation officer testified that Mother had been employed, but had lost her employment. ( See id. at 90). Mother never provided CYS with any documentation of employment. ( See id. at 70).
One of Mother's service objectives was to complete a parenting education program. ( See id. at 65). Mother did not complete such a program. ( See id. at 65-66).
Mother has moved at least four times since Child came into care. ( See id. at 55). At the time of the hearing, Mother was residing in a shelter at the YWCA. ( See id.). Mother testified that she knew she was not currently stable and was not asking to have the child returned to her. ( See id. at 143).
At the time of the hearing, on May 18, 2017, Child had been in foster care for just one day shy of nineteen months. ( See id. at 14). During that time, her foster parents have provided for all her needs. ( See id. at 15-16). Child maintains contact with an older brother, who was adopted by friends of the foster family. ( See id. at 14). Child is bonded with other children in her foster family, and she calls her foster parents "Mommy" and "Daddy." ( Id. at 15). Child runs to the window when her foster father comes home from work, saying, "Daddy, Daddy, Daddy." ( Id.). Mother testified that the foster parents are, "really good parents for my daughter," who "could probably take care of her a lot better than me." ( Id. at 143).
Mother has six other children; none of them are in her care. ( See id. at 49).
Visits with Mother have only made up seven ten-thousandths (0.0007) of Child's life. ( See id. at 115). Dr. Howard Rosen, a psychologist, testified that Mother is "really not much removed from a total stranger that we could find on the street." ( Id.).
CYS filed its petition to change Child's goal to adoption and to terminate Mother's parental rights involuntarily on March 24, 2017. The trial court held a hearing on that petition on May 18, 2017, at which Child was represented by separate legal counsel and a guardian ad litem, and entered the termination/goal change decree and order on that same day. Mother filed an untimely appeal on June 20, 2017, that this Court quashed. The trial court granted Mother nunc pro tunc relief on October 11, 2017. Mother filed a timely appeal and concise statement of errors complained of on appeal on October 19, 2017. The trial court entered its opinion on November 21, 2017. See Pa.R.A.P. 1925.
This Court has recently held that we will address sua sponte the orphans' court's responsibility to appoint counsel pursuant to 23 Pa.C.S.A. § 2313(a). See In re K.J.H., 180 A.3d 411, 413 (Pa. Super. 2018). Our Supreme Court, in In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017) (plurality), held that Section 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 this case, in an order entered April 17, 2017, the trial court appointed attorney Heather Paterno, Esquire, as counsel for Child. Attorney Sarah Hoffman, Esquire, acted as Child's guardian ad litem. Therefore, we conclude that the trial court fulfilled its responsibility to appoint counsel pursuant to 23 Pa.C.S.A. § 2313(a).
Mother presents the following issues for our determination:
1. [Whether the trial c]ourt erred as a matter of law and abused its discretion in changing the goal for [Child] to adoption and terminating [Mother's] parental rights in that [Mother] is able to provide [Child] with the essential parental care, control, and subsistence[?]
2. [Whether the trial c]ourt erred as a matter of law and abused its discretion in terminating [Mother's] parental rights in that the conditions which led to the removal or placement of [Child] no longer existed or were substantially eliminated[?]
3. [Whether the trial c]ourt was in error in determining the best interest of [Child] would be served by terminating [Mother's] parental rights[?]
4. [Whether the trial c]ourt was in error in determining the best interests of [Child] would be served by changing the goal for [Child] to adoption and terminating [Mother's] parental rights[?](Mother's Brief, at 8).
Mother includes the question of goal change in her questions presented and cites some goal change cases in her brief, but fails to include the issue of goal change in her prayer for relief. ( See Mother's Brief, at 16). Nevertheless, we find that the standard for a change of goal has been met in this case.
Our standard of review of a change of a child's goal is as follows:
Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The 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. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.
When considering a petition for goal change for a dependent child, the trial court considers:
the continuing necessity for and appropriateness of the placement; the extent of compliance with the service plan developed for the child; the extent of progress made towards alleviating the circumstances which necessitated the original placement; the appropriateness and feasibility of the current placement goal for the child; and, a likely date by which the goal for the child might be achieved.In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citing 42 Pa.C.S.A. § 6351(f)).
Additionally, section 6351(f.1) requires the trial court to make a determination regarding the child's placement goal:
(f.1) Additional determination.—Based upon the determinations made under subsection (f) and all relevant evidence presented at the hearing, the court shall determine one of the following:
42 Pa.C.S.A. § 6351(f.1)(2).
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(2) If and when the child will be placed for adoption, and the county agency will file for termination of parental rights in cases where return to the child's parent, guardian or custodian is not best suited to the safety, protection and physical, mental and moral welfare of the child.
On the issue of a placement goal change, this Court has stated:
When a child is adjudicated dependent, the child's proper placement turns on what is in the child's best interest, not on what the parent wants or which goals the parent has achieved. See In re Sweeney , 393 Pa. Super. 437, 574 A.2d 690, 691 (1990) (noting that "[o]nce a child is adjudicated dependent . . . the issues of custody and continuation of foster care are determined by the child's best interests"). Moreover, although preserving the unity of the family is a purpose of [the Juvenile Act], another purpose is to "provide for the care, protection, safety, and wholesome mental and physical development of children coming within the provisions of this chapter." 42 Pa.C.S.[A.] § 6301(b)(1.1). Indeed, "[t]he relationship of parent and child is a status and not a property right, and one in which the state has an interest to protect the best interest of the child." In re E.F.V., 315 Pa. Super. 246, 461 A.2d 1263, 1267 (1983) (citation omitted). . . .In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
Our standard of review in the termination of parental rights is as follows:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Here, the trial court terminated Mother's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). In order to affirm the termination of parental rights, this Court need only agree with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Requests to have a natural parent's parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 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:
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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.A. § 2511(a)(8) and (b).
(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.
It is well settled that a party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence," a standard which requires evidence 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." In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citation omitted). Further,
A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
The Adoption Act provides that a trial court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.A. § 2511(b). The Act does not make specific reference to an evaluation of the bond between parent and child but our case law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481, 484 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
We have examined the opinion entered by the trial court in this matter on November 21, 2017, in light of the record before us, and are satisfied that that opinion is a complete and correct analysis of this case.
Accordingly, we affirm the decree and order of the Court of Common Pleas of Dauphin County that terminated Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b), and changed Child's goal to adoption, on the concise, thorough, and well-written opinion of the Honorable John F. Cherry.
Decree and order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/12/18
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