In the Matter of: M.P., Appeal of: S.M. , 204 A.3d 976 ( 2019 )

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2019 PA Super 55IN THE MATTER OF: M.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.L., MOTHER :
:
:
:
:
: No. 1371 MDA 2018
Appeal from the Decree Entered July 20, 2018
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 42-AD-2018,
43-AD-2018, CP-22-DP-295-2016,
CP-22-DP-296-2016
IN THE MATTER OF: M.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.L., MOTHER :
:
:
:
:
: No. 1372 MDA 2018
Appeal from the Order Dated July 20, 2018
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 42-AD-2018,
43-AD-2018, CP-22-DP-0000295-2016,
CP-22-DP-0000296-2016
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
OPINION BY MURRAY, J.: FILED FEBRUARY 22, 2019
S.L. (Mother) appeals from the decrees involuntarily terminating her
parental rights to her minor children, Ma.P. (born July 2011) and M.P. (born
January 2013) (collectively Children), pursuant to 23 Pa.C.S.A. § 2511(a)(2),
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* Retired Senior Judge assigned to the Superior Court.
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(5), (8) and (b) of the Adoption Act.1 Mother also appeals from the orders
entered the same day, which changed Children’s permanency goal from
reunification to adoption pursuant to 42 Pa.C.S.A. § 6351. Mindful of our
Supreme Court’s directive in Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018), and upon careful consideration, we affirm the trial court, and with this
decision, remind, advise and emphasize to all litigants who seek appellate
review with this Court – whether in criminal, civil or family cases – that
Walker is the law of the Commonwealth, and shall be applied prospectively
and uniformly by this Court.
Facts
Instantly, Dauphin County Social Services for Children and Youth (the
Agency) became involved with Mother and Children in November 2016, after
receiving a report that Mother had delivered a stillborn child and used drugs
prior to delivery. See N.T., 7/19/18, at 8-13. While Mother was still
hospitalized, Children were removed from the home and placed in kinship
foster care with a maternal aunt and uncle. Id.On January 18, 2017, Children were adjudicated dependent. Over the
next year, Mother remained noncompliant with her parenting objectives.
Accordingly, on April 26, 2018, the Agency petitioned to terminate Mother’s
parental rights and change Children’s permanency goal from reunification to
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1 The court also terminated the parental rights of B.P., the father of Ma.P.,
and J.H., the father of M.P. B.P. filed an appeal and we address his issues in
a separate memorandum docketed at 1373 MDA 2018. J.H. has not appealed.
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adoption. The court convened a hearing on the petitions on July 19, 2018.
Children were represented by counsel, as guardian ad litem and legal counsel.
Mother, represented by counsel, testified on her own behalf.
At the conclusion of testimony, the court terminated Mother’s parental
rights and changed Children’s permanency goal to adoption. N.T., 7/19/18,
at 96-102. On August 17, 2018, Mother timely appealed and complied with
Pa.R.A.P. 1925(a)(2)(i) and (b). Mother filed two notices of appeal – one for
each child – challenging the court’s termination of Mother’s parental rights
and the change of permanency goal to adoption.
Commonwealth v. Walker
As mandated by Walker, we address the fact that Mother filed a single
notice of appeal for each child, with separate issues – termination and goal
change – that relate to two different docket numbers. The Official Note to
Rule 341 of the Pennsylvania Rules of Appellate Procedure provides in relevant
part:
Where, however, one or more orders resolves issues arising on
more than one docket or relating to more than one judgment,
separate notices of appeals must be filed. Commonwealth v.
C.M.K., 932 A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing
appeal taken by single notice of appeal from order on remand for
consideration under Pa.R.Crim.P. 607 of two persons’ judgments
of sentence).
Pa.R.A.P. 341, Official Note.
Until recently, it was common practice for courts of this Commonwealth
to allow appeals to proceed, even if they failed to comply with Pa.R.A.P. 341.
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While our Supreme Court recognized that the practice of appealing
multiple orders in a single appeal is discouraged under Pa.R.A.P.
512 (joint appeals), it previously determined that “appellate
courts have not generally quashed [such] appeals, provided that
the issues involved are nearly identical, no objection to the appeal
has been raised, and the period for appeal has expired.” K.H. v.
J.R., 826 A.2d 863, 870 (Pa. 2003) (citation omitted).
In the Interest of: P.S., 158 A.3d 643, 648 (Pa. Super. 2017) (footnote
omitted).
However, on June 1, 2018, our Supreme Court in Walker held that the
practice violated Pennsylvania Rule of Appellate Procedure 341, and the failure
to file separate notices of appeal for separate dockets must result in quashal
of the appeal. See Walker, 185 A.3d at 977. The Court stated
unequivocally: “The Official Note to Rule 341 provides a bright-line mandatory
instruction to practitioners to file separate notices of appeal. . . . The failure
to do so requires the appellate court to quash the appeal.” Id. at 976-77.
Because the mandate in the Official Note was contrary to “decades of
case law from this Court and the intermediate appellate courts,” the Walker
Court announced that its holding would apply prospectively only. Id. at
977. Accordingly, Walker applies to appeals filed after June 1, 2018, the date
Walker was filed. Id.
Mother’s notices of appeal were filed on August 17, 2018. Although the
court addressed the merits of Mother’s issues in its Rule 1925(a) opinion, our
Supreme Court requires “when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be filed. The
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failure to do so will result in quashal of the appeal.” Id. It appears that
Mother attempted to comply with Walker’s mandate by filing separate notices
of appeal for each child. However, she failed to file separate notices of appeal
for her discrete challenges to the termination decree and goal change for each
child. Thus, because Mother filed her notices of appeal from two separate
dockets (dependency and adoption), Walker compels quashal.2
To the extent decisional law may have been unclear to this point, we
further recognize the two substantive issues Mother presents for review:
1. Did the trial court abuse its discretion, or commit an error of
law in changing the goal for the children from reunification to
adoption?
2. Did the trial court abuse its discretion, or commit an error of
law in terminating [Mother’s] parental rights?
Mother’s Brief at 9.
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2 We recognize the harsh – perhaps draconian – consequence of quashing any
appeal, and in particular an appeal involving a party’s parental rights.
However, our role as an intermediate appellate court is clear. “It is not the
prerogative of an intermediate appellate court to enunciate new precepts of
law or to expand existing legal doctrines. Such is a province reserved to the
Supreme Court.” Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa.
Super. 1999). It is well-settled that “the Superior Court is an error correcting
court and we are obliged to apply the decisional law as determined by the
Supreme Court of Pennsylvania.” Commonwealth v. Montini, 712 A.2d
761, 769 (Pa. Super. 1998).
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Termination
With regard to the termination of Mother’s parental rights:
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) (internal citations and quotations
omitted).
Termination 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). As the
Agency argues that it proved by clear and convincing evidence that grounds
for termination existed under 23 Pa.C.S.A. § 2511(a)(2), we focus our analysis
on subsection (a)(2) and (b).
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The relevant subsections of 23 Pa.C.S.A. § 2511 provide:
(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.
***
(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.
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.”
See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The
grounds for termination are not limited to affirmative misconduct, but concern
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parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108,
1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward
the reasonably prompt assumption of full parental duties. Id.The essence of Mother’s argument is that her parental rights should not
have been terminated because she was “addressing the issues,” including her
drug, alcohol, and mental health issues. See Mother’s Brief at 12, 22-23.
This argument lacks merit.
The court primarily analyzed the evidence under Section (a)(8), but also
stated that it found clear and convincing evidence to terminate under Section
(a)(2). See Trial Court Opinion, 10/3/18, at 10-11. The court explained:
although Mother complied with some of the objectives, she had
failed to demonstrate sustained commitment caring for Children
and recovery from her drug addiction. In spite of the services
made available to her, she has yielded to devastating drug abuse.
As a result, she lacks employment and a suitable home for
Children.
Id. at 11.
The record supports the trial court’s determination. Children were
originally placed into care in November 2016 as a result of Mother’s drug
addiction, and failure to prevent the father of one of the Children from giving
both Children marijuana-laced cookies. When M.P. was diagnosed with acute
myeloid leukemia, Mother was uninvolved in M.P.’s care, such that the Agency
had to obtain a court order for consent to M.P.’s medical treatment. While
M.P. was hospitalized, Mother visited a total of 60 times during the 160 days
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M.P. was hospitalized; again, a court order was required to prevent Mother
from arriving at times disruptive to M.P.’s care.
Initially, Mother was non-compliant with her drug treatment. She was
discharged from one program in August 2017 for lack of attendance and
submitted a total of 31 drug screens, 26 of which were positive for drugs or
alcohol. At the time of the hearing, Mother had accrued new criminal charges
which remained unresolved. Although there was evidence that Mother had
been compliant as of December 2017 and was making progress with drug and
alcohol treatment, her recovery was new and fragile. As Mother herself
testified, she was unable to seek employment because she was focused on
her recovery, and she resided in a halfway house where Children could not
join her. This Court has stated that “a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006). Accordingly, we discern no error in the court’s finding that competent,
clear, and convincing evidence supported the termination of Mother’s parental
rights pursuant to Section 2511(a)(2), based upon Mother’s continued
incapacity – her long history of addiction, lack of timely compliance with
parental objectives, and accrual of new criminal charges – that resulted in
Children being without essential parental care, the cause of which “cannot or
will not be remedied.” See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.
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Next, we consider Children’s needs and welfare pursuant to subsection
(b). See Z.P., 994 A.2d at 1121. “In this context, the court must take into
account whether a bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial relationship.”
Id. The court is not required to use expert testimony, and social workers and
caseworkers may offer evaluations as well. Id. Ultimately, the concern is the
needs and welfare of a child. Id.We have explained:
Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parent’s rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The court may equally emphasize the safety needs of the child and
may consider intangibles, such as the love, comfort, security, and stability the
child might have with the foster parent. See In re N.A.M., 33 A.3d 95, 103
(Pa. Super. 2011). Where there is no evidence of a bond between the parent
and child, it is reasonable to infer that no bond exists. Id. “[A] parent’s basic
constitutional right to the custody and rearing of . . . her child is converted,
upon the failure to fulfill . . . her parental duties, to the child’s right to have
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proper parenting and fulfillment of [the child’s] potential in a permanent,
healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.
2004) (internal citations omitted).
Again, Mother makes a general argument of trial court error in asserting
that the best interests of Children were not served by the termination of her
parental rights. See Mother’s Brief at 23. Mother does not discuss her bond
with Children, or Children’s needs and welfare. Accordingly, she risks waiver.
See In re Adoption of R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super. 2013)
(declining to address subsection 2511(b) where the appellant did not make an
argument concerning that subsection).
Further, no evidence was introduced to show a parental bond between
Children and Mother beyond Mother’s testimony that Children loved her. See,
e.g., K.Z.S., 946 A.2d at 763. Here, the court observed:
We do not doubt that Mother loves her children. However, we see
no evidence of a bond with Mother which, if broken, would cause
detriment to them. Mother visited gravely ill M.P. only
sporadically. Mother failed to maintain communication with the
Agency and Hershey Medical Center to address urgent requests
for M.P.’s leukemia treatment. Mother failed to visit Ma.P.
regularly.
We recognize that Mother seeks additional time within which to
pursue drug treatment and demonstrate the ability to care for the
children. However, a continued lack of permanency with the
potential of removal from a capable and loving home would be
contrary to their best interests . . .
Children have resided with the kinship foster family since
November 2016. In that home they have received the love, care,
and attention needed to address all of their needs. Their bond
with the foster parents is evidenced by their happiness and
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affection toward the foster parents. Significantly, Foster Mother
took a leave of absence from her employment to ensure she could
stay with M.P. during her hospitalization. Foster Mother has
returned to work, but takes time off as needed to take M.P. to
follow-up doctor’s appointments. The kinship foster parents have
provided all of the devotion and stability Children require and
deserve.
Trial Court Opinion, 10/3/18, at 12-13 (citations to the record omitted).
We discern no abuse of discretion in the court’s conclusions. Clear and
convincing evidence supports the court’s termination of Mother’s parental
rights under Sections 2511(a)(2), as well as the court’s Section 2511(b)
findings as to Children’s needs and welfare. See Z.P., 994 A.2d at 1126-27;
K.Z.S., 946 A.2d at 763.
Goal Change
Mother also challenges the Children’s goal change to adoption.
The standard of review which this Court employs in cases of
dependency is broad. However, the scope of review is limited in
a fundamental manner by our inability to nullify the fact-finding of
the lower court. We accord great weight to this function of the
hearing judge because he is in the position to observe and rule
upon the credibility of the witnesses and the parties who appear
before him. Relying upon his unique posture, we will not overrule
his findings if they are supported by competent evidence.
In re N.A., 116 A.3d 1144, 1148 (Pa. Super. 2015). We thus review this
claim for an abuse of discretion. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).
Regarding the disposition of dependent children, the Juvenile Act, 42
Pa.C.S.A. §§ 6351(e)-(g), provides the criteria for a permanency plan. The
court must determine a disposition best suited to the safety and protection,
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as well as the physical, mental, and moral welfare of children. See 42
Pa.C.S.A. § 6351(g). In considering a petition for goal change, the 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 Interest of A.N.P., 155 A.3d 55, 67 (Pa. Super. 2017) (quoting In re
A.K., 936 A.2d 528, 533 (Pa. Super. 2007).
In addition:
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.
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. § 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 K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006) (some citations omitted).
Mother’s argument regarding goal change is not clear, although she
appears to allege that the Agency did not provide appropriate or sufficient
reunification services. See Mother’s Brief at 14-18. However, Mother also
concedes that the Agency had difficulty contacting Mother, and Mother was
still abusing drugs during that time period. Id. at 16-17. Nonetheless, Mother
claims that “very little was done to facilitate visits between Mother and the
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Children,” and her caseworker did not assist Mother in scheduling visits,
ensuring that visits occurred, or “check on the quality of the visits that were
occurring.” Id. at 17-18.
Although Mother attempts to argue that appropriate reunification
services were not provided, the record reflects otherwise. Mother was either
non or minimally compliant with her family service plan objectives. While she
completed some drug and alcohol and mental health counseling by the time
of the final hearings, such efforts occurred after the Agency’s extensive and
unsuccessful efforts to get Mother treatment, and when Mother, on 26
occasions, tested positive for drugs.
Further, Mother had issues with visitation throughout the pendency of
the case. It was Mother’s responsibility, as one of her objectives, to apprise
the Agency of her addresses, contact information, and whereabouts. She did
not do so and admits that she was “difficult to contact.” Mother’s Brief at 16.
As recently as May 2018, Mother had not given the Agency a forwarding
address. When visitation was provided, Mother did not appear, or when she
did, she caused strife. For example, when visiting the M.P. in the hospital,
Mother had to be ordered to come at appropriate times because her presence
disrupted M.P.’s ability to sleep. Mother did not visit with Ma.P., and when
she did, her interactions with the foster family were acrimonious. After a
bench warrant was issued for Mother’s arrest, visitation was suspended.
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At the time of the final permanency review hearing, Mother had not
obtained employment, had not obtained stable housing, had accrued new
criminal charges, and was not visiting with Children. These were Mother’s
service objectives. The record reveals that Mother was not compliant with her
family service plan, made little progress towards alleviating the circumstances
that had led to Children’s placement, and showed no indication that the
circumstances would be remedied in a reasonable amount of time. See, e.g.,
A.N.P., 155 A.3d at 67. Therefore, the court did not err in changing Children’s
permanency goal to adoption.
Conclusion
After careful consideration, we affirm the trial court. We note that this
ruling, like all of our rulings, may not be disposition-driven. We are bound by
decisional and statutory legal authority, even when equitable considerations
may compel a contrary result. We underscore our role as an intermediate
appellate court, recognizing that “the Superior Court is an error correcting
court and we are obliged to apply the decisional law as determined by the
Supreme Court of Pennsylvania.” Commonwealth v. Montini, 712 A.2d at
769. “It is not the prerogative of an intermediate appellate court to enunciate
new precepts of law or to expand existing legal doctrines. Such is a province
reserved to the Supreme Court.” Moses v. T.N.T. Red Star Exp., 725 A.2d
at 801. Accordingly, we issue this decision with the following order.
ORDER
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AND NOW, it is ORDERED that all parties seeking review with the
Superior Court shall file notices of appeal as mandated by Pennsylvania Rule
of Appellate Procedure 341 and Commonwealth v. Walker, 185 A.3d 969(Pa. 2018). Failure to comply will result in quashal of the appeal.
Termination and goal change affirmed. Jurisdiction relinquished.
P.J. Panella joins the Opinion.
Judge Pellegrini files a Concurring and Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2019
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