In the Int. of: A.T.A., Appeal of: C.J. ( 2022 )

J-S33001-22, J-S33002-22 & J-S33003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.S.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.J., MOTHER :
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: No. 1687 EDA 2022
Appeal from the Decree Entered June 16, 2022,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0000352-2022.
IN THE INTEREST OF: W.R.A.,JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.J., MOTHER :
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: No. 1689 EDA 2022
Appeal from the Decree Entered June 16, 2022,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0000353-2022.
IN THE INTEREST OF: A.T.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.J., MOTHER :
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: No. 1691 EDA 2022
J-S33001-22, J-S33002-22 & J-S33003-22
Appeal from the Decree Entered June 16, 2022,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0000354-2022.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 30, 2022
C.J. (Mother) appeals the decrees issued by the Philadelphia County
Court of Common Pleas, which terminated her rights to sons, 121-year-old
C.S.J. and 9-year-old W.R.A., Jr., and to her daughter, 8-year-old A.T.A.
(collectively, the Children), pursuant to the Adoption Act. See 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8) and (b).2 Because Mother raised the same issues as
to each Child, we address Mother’s appeals in one memorandum. After careful
review, we affirm.
The family had been involved with the Philadelphia Department of
Human Services (DHS) for a decade. C.S.J. was originally adjudicated
dependent in April 2012, when he was less than two years old. W.R.A. was
born premature in January 2013; he was adjudicated dependent a month
later. In both cases, the cause for removal was Mother’s alleged drug use and
DHS’s concerns about Mother’s mental health.
However, Mother had substantially satisfied her reunification goals, and
the dependency court reunified the Children with Mother in July 2013.
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1 C.S.J. was nearly 13 years old.
2 At the time of the termination hearing, the trial court granted the parties’
request to bifurcate the fathers’ respective cases due to imperfect service.
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Meanwhile, A.T.A. was born in January 2014. DHS continued to supervise the
family until 2016, when the cases of the younger Children were discharged;
services remained in place for C.S.J., because he displayed behavioral issues
in school.
But just as the permanency cases were winding down, DHS obtained an
order for protective custody in December 2016. DHS was concerned Mother
had neglected the Children, as evinced by the Children’s poor hygiene, the
lack of a working refrigerator or food in the home, and Mother’s refusal to
allow DHS to fully assess the residence. The dependency court again removed
the Children from the home.
In January 2017, the Community Umbrella Agency (CUA) developed a
single case plan to aid Mother with reunification. Mother’s objectives included:
to participate in the Children’s education, well-being, and behavioral health
needs; to make reasonable efforts to attend to the Children’s appointments;
to comply with the treatment plans and recommendations; to participate in
parenting classes and allow CUA in the home. The goal of family therapy was
later added to Mother’s single case plan.
Over the next five years, Mother’s level of compliance generally dropped
from “full” to “substantial” to “moderate” to “minimal.” By late 2021, the
dependency court determined that Mother was not compliant with C.S.J.’s and
W.R.A.’s permanency plans, and only minimally compliant with A.T.A.’s plan.
DHS filed petitions to terminate Mother’s rights on June 2, 2022. The orphans’
court conducted an evidentiary hearing on June 16, 2022, and subsequently
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terminated Mother’s rights as to all three Children. Mother timely filed this
appeal, wherein she presents four issues:
1. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Mother, pursuant to 23 Pa.C.S.A. § 2511(a)(1) where
Mother presented evidence that she made significant
efforts to perform her parental duties?
2. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Mother, pursuant to 23 Pa.C.S.A. § 2511(a)(2) where
Mother presented evidence that she made significant
efforts to remedy any incapacity or neglect?
3. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Mother, pursuant to 23 Pa.C.S.A. § 2511(a)(5) and
(a)(8)?
4. Whether the trial court erred and/or abused its
discretion by terminating the parental rights of
Mother, pursuant to 23 Pa.C.S.A. § 2511(b) where
evidence was presented that Mother has a positive
parental bond with the Children that would be
detrimental to sever?
Mother’s Brief at 8.
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
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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).
Our Supreme Court has repeatedly stated that in termination cases,
deference to the trial court is particularly crucial. In re Adoption of L.A.K.,
265 A.3d 580, 597 (Pa. 2021); see also Interest of S.K.L.R., 265 A.3d 1108,
1124 (Pa. 2021) (“When a trial court makes a ‘close call’ in a fact-intensive
case involving…the termination of parental rights, the appellate court should
review the record for an abuse of discretion and for whether evidence supports
that trial court’s conclusions; the appellate could should not search the record
for contrary conclusions or substitute its judgment for that of the trial court.”).
The abuse-of-discretion standard in termination cases “is a highly deferential
standard and, to the extent that record supports the court’s decision, we must
affirm even though evidence exists that would also support a contrary
determination.” In re P.Z., 113 A.3d 840, 849 (Pa. Super. 2015) (citation
omitted).
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 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
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2511(b): determination of the needs and welfare of the
child[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Clear and convincing evidence is 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
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of
Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). We add that we
may uphold a termination decision if any proper basis exists for the result
reached. C.S., 761 A.2d at 1201. Importantly, we need only agree with the
orphans’ court as to any one subsection of Section 2511(a), as well as Section
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc).
Because we may affirm under any one subsection, we review the
orphans’ court determinations under Section 2511(a)(2), which corresponds
with Mother’s second appellate issue. The relevant section provides:
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any
of the following grounds:
[…]
(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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23 Pa.C.S.A. § 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.” C.M.K., 203 A.3d at 262 (citation omitted).
We turn now to Mother’s appellate challenge to the orphans’ court
determination that DHS established grounds under Section 2511(a)(2).
Mother presents a singular argument as to all three Children. She starts by
explaining that “past incapacity alone is not sufficient basis for involuntary
termination.” See Mother’s Brief at 19-20 (citing In re Adoption of A.N.D.,
520 A.2d 31, 35 (Pa. Super. 1986)). Mother reasons that she was actively
completing her reunification objectives, including her parenting goals, anger
management, submission to random drug screens, housing, and employment.
Id. at 20. For support, Mother cites her cross-examination of the CUA case
manager, who conceded that Mother participated in, or completed, various
programs. See N.T., 6/16/22, at 65-68. Because she had substantially
achieved her goals, thereby demonstrating her capacity to parent the
Children, Mother concludes that termination under Section 2511(a)(2) was
erroneous.
This argument fails for two reasons. First, the litany of achieved
objectives Mother claims she achieved to all occurred several years earlier.
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Although Mother has maintained employment and housing, Mother has not
complied with her single case plans for some time. Notably, she failed to
report to the Clinical Evaluation Unit for drug tests, and she failed to provide
documentation of substance abuse and mental health treatment. She also did
not permit the Agency to investigate the suitability of her home.
Second, and more importantly, Mother’s argument does not address the
primary basis for the court’s Section 2511(a)(2) decision – namely Mother’s
“repeated and continued…refusal…caused the child[ren] to be without
essential parental care.” See 23 Pa.C.S.A. § 2511(a)(2) (emphasis added).
The orphans’ court found that Mother believed she had done enough to
reunify with the Children, and that she flatly refused to do any more. See N.T
at 78-79. The court’s finding is supported by the record. The CUA case
manager testified:
Mother said she went to the Arc [(reunification center)]. She
completed parenting. And she completed a lot of her single
case plans and she was not going back to do anything over
again and that the City can blank, blank, blank her you-
know-what and that was not going to cooperate with
anything. She just wanted her kids back because the City
took her kids wrongfully and that she was going to file a
lawsuit against the City.
Id. at 46.
Mother admitted as much: “[…] I did tell [the case manager] that I
wasn’t going to do anything else because I have already done it and – until I
see my Children because I haven’t seen my Children in over year.” Id. at 52.
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Thus, it was Mother’s refusal to parent which left the Children without
essential parental care, control or subsistence, and it was her refusal to
parent that the court determined Mother could not, or would not, remedy. See
23 Pa.C.S.A. § 2511(a)(2). Mother presents no argument to contest this
finding.
We conclude that the orphans’ court did not abuse its discretion when it
determined DHS met its burden under Section 2511(a)(2). Thus, we conclude
the first portion of the bifurcated termination analysis was proper. Given this
disposition, we need not address the court’s decisions as to the other Section
2511(a)(1), (5), and (8), nor Mother’s arguments regarding the same.
Instead, we proceed directly to Mother’s final appellate issue, which concerns
the second portion of the bifurcated termination analysis under Section
2511(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.
23 Pa.C.S.A. § 2511(a)(b).
This Court has explained that:
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[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and status
of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of
a bond between a parent and child, it is reasonable to infer
that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63
(Pa. Super. 2008). Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,
946 A.2d at 764 (holding there was no bond worth preserving where the child
had been in foster care for most of the child’s life, which caused the resulting
bond to be too attenuated). Moreover, the court is not required to use expert
testimony to resolve the bond analysis. In re Z.P., 994 A.2d 1108, 1121
(citing In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008)).
“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. Finally, we
emphasize that “[w]hile a parent’s emotional bond with her and/or her child
is a major aspect of the Section 2511(b) best-interest analysis, it is
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nonetheless only one of many factors to be considered by the court when
determining what is in the best interest of the child.” In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (citation omitted).
On appeal, Mother again advances a single argument as to all three
Children. She starts by alleging she had regular visitation with the Children
until 2021. At that point, visitation ceased, and she had not seen the older
Children (C.S.J. and W.R.A.) in over a year.3 Mother argues “[i]t is impossible
to assess the bond between Mother and her Children and whether termination
of Mother’s parental rights would have a detrimental effect on the Children
based on the fact that Mother did not even have the opportunity to visit with
the [(older)] Children for approximately 12-15 months preceding the
termination of parental rights hearing.” See Mother’s Brief at 23. Mother
concludes that DHS did not establish grounds for termination under Section
2511(b).
Mother’s argument is without merit. We reiterate that “where there is
no evidence of a bond between a parent and child, it is reasonable to infer
that no bond exists.” J.M., 991 A.2d at 324 (citing K.Z.S., 946 A.2d at 762-
63)). Mother’s appeal may end here.
But for the sake of completeness, we review the orphans’ court’s
determinations under this section. The orphans’ court found:
The testimony reflects that there is no bond nor relationship,
that these Children would not suffer irreparable harm if the
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3 Mother continued to have visitation with A.T.A. until 2022.
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parental rights were terminated. The Children look to the
foster parents to meet their needs. Testimony reflects that
they’re doing well with their foster parents, who are meeting
their developmental, physical and emotional needs and
welfare of the Children. Unfortunately, they have spent
most of their lives in foster care.
N.T. at 79.
After review, the record supports the determinations rendered by the
orphans’ court. The CUA case manager opined that the Children would not
experience irreparable harm if Mother’s rights were terminated. Id. at 23.
The case manager opined there was no bond, nor even a relationship, between
the Children and Mother. Id. The case manager explained there was no
relationship because the Children had been without parental care for years.
We observe that the older Children – 12-year-old C.S.J. and 9-year-old
W.R.A. – elected not to visit Mother since 2021. The visits between Mother
and 8-year-old A.T.A. continued through May 2022, but we note A.T.A. wanted
to stop visitations “a while back.” The CUA encouraged the Child to keep
visiting Mother until May 2022, after an incident between A.T.A. and Mother.
During a May 2022 visitation, Mother “snatched [a khimar] off her head and
was very mean to her and yelled in her face and told her that she would not
be a Muslim.” Id. at 21.4
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4 A khimar is a head-covering that is worn by some Muslim women. We clarify
the relevance of this incident. Whether Mother retained the right to make
religious decisions on behalf of her Child is of no moment. The more pertinent
fact is that Mother unceremoniously grabbed the khimar off the Child’s head,
which upset the Child so much that the Child did not want to see Mother
(Footnote Continued Next Page)
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Mother blamed the case manager for the lack of relationship between
Mother and the Children. During her cross-examination of the case manager,
Mother was able to elicit testimony that even though a family therapy goal
was added to Mother’s single case plan, the case manager never made a
referral. See id. at 38-39. Thus, in Mother’s view, she could not be held
responsible for the Children’s refusal to see her.
Although we have some concern with CUA’s lack of follow-through
regarding the family therapy referral, we are cognizant that the remedy for
an agency’s failure to provide reunification services is not to delay permanency
by denying termination. See In re D.C.D., 105 A.3d 662, 675 (Pa. 2014).
We also observe the orphans’ court noted that the Children already received
therapy on an individual basis. And that the Children’s therapists never
reached out to the Agency so that Mother could be included. See N.T., 78;
46-47. Evidently, this was a mitigating factor for the orphans’ court. In other
words, the Children received treatment to process the trauma they endured;
it was not the case that DHS sat back as the Children’s emotional wellbeing
deteriorated to the point where DHS felt confident it could obtain termination
decrees. In fact, the record reveals the Agency’s efforts to coax A.T.A. into
visiting Mother in an attempt to preserve their relationship.
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thereafter. It’s the emotional impact of Mother’s actions that we observe,
regardless of whether the parent had a bona fide right to decide if her child
wore a khimar, or a cross, or a yarmulke, or a bindi. It is telling that this
incident was the final straw for A.T.A.
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Ultimately, whether the Children wanted to see Mother is not dispositive.
Mother’s refusal to cooperate with the Agency’s reunification efforts meant
that Mother never obtained anything beyond supervised visits. Meanwhile,
the Children’s respective dependency cases lingered. Over time, Children did
not desire a relationship with Mother and began to look to their respective
foster parents for support, security, and permanency.5 The Children’s lack of
bond with Mother is a symptom of Mother’s refusal to parent, not a failure on
the part of DHS. Mother’s argument merits no relief.
In sum, we discern no error, nor abuse of discretion, concerning the
orphans’ court decisions as to Section 2511(a)(2) and (b). We conclude that
the court properly applied the bifurcated termination analysis in each Child’s
respective case.6
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5 C.S.J. and A.T.A. were placed in the same foster home. W.R.A. was placed
in a separate foster home. Both homes are now pre-adoptive resources.
6 As a final matter, we address the prolonged nature of this matter. These
Children were removed from the home, for the second time, in 2016. The
termination decrees were not entered until June 2022, five and a half years
later. In the ten years since C.S.J. was removed, this case saw multiple judges
and multiple case managers. Even Children’s guardian ad litem was initially
confused as to his representation at the start of the termination hearing. See
N.T. at 5.
We remind the orphans’ court and DHS to guard against foster care drift. As
our Supreme Court explained:
[C]ourts must keep the ticking clock of childhood ever in
mind. Children are young for a scant number of years, and
we have an obligation to see to their healthy development
(Footnote Continued Next Page)
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Decrees affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2022
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quickly. When courts fail…the result, all too often, is
catastrophically maladjusted children.
T.S.M., 71 A.3d at 269.
Although the Juvenile Act “does not establish a litmus test that requires a
juvenile court to alter the course of reunification due simply to the amount of
time a child has been in placement[; i]t does, however, create a mechanism
for keeping juvenile courts alert to the potential for foster care drift, i.e., where
the children languish in the foster care system while their parents
unsuccessfully attempt to regain custody.” P.Z., 113 A.3d at 846-47 (further
citations and quotations omitted). Id. at 847.
“Specifically, if a child has been in custody for 15 of the last 22 months, the
court must inquire as to whether a termination petition has been filed, absent
the listed exceptions [in 42 Pa.C.S.A. § 6351(f)(9)(i-iii).] […] Requiring a court
to inquire whether an agency has filed for termination promotes timely
permanency for children rather than subject them to foster care drift.” In re
D.C.D., 105 A.3d 662, 674-75 (Pa. 2014).
Here, given the scarcely detailed permanency review orders, it is unclear
whether the dependency court made the requisite inquiries under Section
6351(f)(9) – though, we note the record does contain termination petitions
from 2018. The trial court opinion, which technically complied with Pa.R.A.P.
1925(a), provides no other background information. Based on the orders, it
is unclear whether the delay in this case was warranted. In light of this, we
simply remind the court to provide details in its permanency review orders
when the child has been in custody for 15 of the last 22 months to ensure that
case is progressing to permanency in a timely fashion.
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