In the Interest of: E.R.K., a Minor ( 2015 )

J-S69001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.R.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: M.K., MOTHER : No. 711 EDA 2015
Appeal from the Judgment Entered February 11, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001500-2011;
DP-51-AP-0000304-2013
IN THE INTEREST OF: T.L.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: M.K., MOTHER : No. 712 EDA 2015
Appeal from the Judgment Entered February 11, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001501-2011;
DP-51-AP-0000302-2013
IN THE INTEREST OF: H.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: M.K., MOTHER : No. 715 EDA 2015
Appeal from the Judgment Entered February 11, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0025103-2010;
DP-51-AP-0000303-2013
IN THE INTEREST OF: B.M.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: M.K., MOTHER : No. 716 EDA 2015
J-S69001-15
Appeal from the Judgment Entered February 11, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0025102-2010;
DP-51-AP-0000301-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 23, 2015
Appellant, M.K. (“Mother”), appeals from the judgments entered in the
Philadelphia Court of Common Pleas, which involuntarily terminated her
parental rights to her minor children, E.R.K, T.L.K, H.K., and B.M.K
(“Children”).1 Upon a thorough review of the record, we affirm.
In its opinion, the trial court fully sets forth the relevant facts and
1
The termination hearing for E.R.K., T.L.K., H.K., and B.M.K. ultimately
concluded on February 11, 2015, with the trial court involuntarily
terminating Mother’s parental rights. On March 9, 2015, Mother filed
appeals at docket Nos. 711 EDA 2015, 712 EDA 2015, 715 EDA 2015, and
716 EDA 2015.
Notwithstanding the initial appeal filing date, these consolidated appeals
were not listed for disposition due to the delay in transmittal of the certified
record to this Court. The certified record was first due by April 8, 2015. On
April 22, 2015, this Court attempted to contact the trial court, but had to
leave a voicemail. On April 28, 2015, the trial court contacted this Court to
inform that they were awaiting notes of testimony yet to be transcribed. On
May 5, 2015, this Court again inquired about the status of the certified
record, and the trial court responded that the opinion and certified record
would be ready by May 19, 2015. This Court finally received both the
certified record and the opinion on May 19, 2015, causing the briefing
schedule to be delayed over one month. Further, the court granted Mother
four extensions of time within which to file a brief and each
Appellee/Participant also requested and received an extension. See In re
T.S.M., 620 Pa. 602, 609 n.7, 71 A.3d 251, 255 n.7 (2013) (reproaching
this Court for unexplained delays in disposition of cases involving at-risk
children, causing them to remain in stasis for substantial, unnecessary
time).
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procedural history of this case.2 Therefore, we have no reason to restate
them.
Mother raises the following issues for our review:
DID DHS MAKE REASONABLE EFFORTS TO ASSIST
MOTHER IN BEING REUNITED WITH HER [CHILDREN]?
DID [DHS] SUSTAIN [ITS] BURDEN THAT MOTHER’S
RIGHTS SHOULD BE TERMINATED?
DID [DHS] SUSTAIN [ITS] BURDEN REGARDING THE
REQUIREMENTS OF 23 PA.C.S.A § 2511(B)?
(Mother’s Brief at 5).
The standard and scope of review applicable in a termination of
parental rights case is as follows:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law,
or insufficient evidentiary support for the trial court’s
decision, the decree must stand. Where a trial court has
granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision
the same deference that it would give to a jury verdict.
We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s
decision is supported by competent evidence.
Furthermore, we note that the trial court, as the finder of
fact, is the sole determiner of the credibility of witnesses
and all conflicts in testimony are to be resolved by [the]
finder of fact. The burden of proof is on the party seeking
termination to establish by clear and convincing evidence
the existence of grounds for doing so.
2
The trial court’s opinion states that the first termination of parental rights
hearing occurred on October 14, 2013, when in fact, it occurred on October
14, 2014.
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The standard of clear and convincing evidence means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
We may uphold a termination decision if any proper basis
exists for the result reached. If the trial court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result.
In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal
denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).
See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super.
2008) (en banc).
DHS sought the involuntary termination of Mother’s parental rights on
the following grounds:
§ 2511. Grounds for involuntary termination
(a) General Rule.―The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of the petition either has evidenced a settled purpose
of relinquishing parental claim to a child or has
refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
* * *
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(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months,
the conditions which led to the removal or placement
of the child continue to exist, the parent cannot or
will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve
the needs and welfare of the child.
* * *
(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.
* * *
(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)(1), (2), (5), (8); and (b).
“Parental rights may be involuntarily terminated where any one
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subsection of Section 2511(a) is satisfied, along with consideration of the
subsection 2511(b) provisions.” In re Z.P., 994 A.2d 1108, 1117
(Pa.Super. 2010).
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…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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for…her conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
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In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of…her parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005).
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; to the contrary those grounds may include
acts of refusal as well as incapacity to perform parental duties. In re
A.L.D., 797 A.2d 326 (Pa.Super. 2002). “Parents are required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. The fundamental test in termination of
parental rights under Section 2511(a)(2) was long ago stated in the case of
In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania
Supreme Court announced that under what is now Section 2511(a)(2), “the
petitioner for involuntary termination must prove (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,
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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.” In Interest of Lilley,
719 A.2d 327, 330 (Pa.Super. 1998).
“Termination of parental rights under Section 2511(a)(5) requires
that: (1) the child has been removed from parental care for at least six
months; (2) the conditions which led to removal and placement of the child
continue to exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.” In re Z.P., supra at 1118.
“[T]o terminate parental rights under Section 2511(a)(8), the
following factors must be demonstrated: (1) the child has been removed
from parental care for [twelve] months or more from the date of removal;
(2) the conditions which led to the removal or placement of the child
continue to exist; and (3) termination of parental rights would best serve the
needs and welfare of the child.” In re Adoption of M.E.P., 825 A.2d 1266,
1275-76 (Pa.Super. 2003).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond,
paying close attention to the effect on the child of permanently severing the
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bond.” Id. at 520. Significantly:
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. When conducting a bonding
analysis, the court is not required to use expert testimony.
Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a
formal bonding evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have his parental rights terminated.” In re B.L.L., 787
A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental
duty requires that a parent exert [herself] to take and
maintain a place of importance in the child’s life.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
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problem, in order to maintain the parent-child relationship
to the best of…her ability, even in difficult circumstances.
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 [the child’s] physical
and emotional needs.
In re B.,N.M., supra at 855 (internal citations omitted). “[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
proper parenting and fulfillment of…her potential in a permanent, healthy,
safe environment.” Id. at 856.
Importantly, neither Section 2511(a) nor Section 2511(b) requires a
court to consider at the termination stage, whether an agency provided a
parent with reasonable efforts aimed at reunifying the parent with her
children prior to the agency petitioning for termination of parental rights. In
re D.C.D., ___ Pa.___, ___, 105 A.3d 662, 672 (2014). An agency’s failure
to provide reasonable efforts to a parent does not prohibit the court from
granting a petition to terminate parental rights under Section 2511. Id. at
___, 105 A.3d at 675.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Joseph L.
Fernandes, we conclude Mother’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
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presented. (See Trial Court Opinion, filed May 15, 2015, at 4-11) (finding:
(1) Mother failed to make any progress during forty-three months Children
were in placement; DHS provided Mother with Family Service Plan (“FSP”)
objectives to help Mother achieve goal of reunification, but Mother failed to
satisfy majority of those objectives; record establishes that DHS offered
reasonable and adequate services to Mother to remedy conditions that
brought Children into system, yet Mother continued to exhibit lack of
capacity to Parent; in light of Mother’s lack of improvement despite
assistance from DHS and fact that Children have been in custody of maternal
grandmother for past three and one-half years, it is in best interest of
Children to terminate Mother’s parental rights and change goal to adoption;
(2) Mother continuously failed to meet majority of her FSP objectives during
forty-three months Children were in placement, despite DHS’ efforts to make
Mother aware of those objectives; at Mother’s permanency review hearings,
court frequently found Mother minimally or moderately compliant with her
FSP objectives; DHS social worker testified she would not recommend
Mother for unsupervised visits because Mother was unable to care for all
Children at one time and Mother frequently used profanity and engaged in
age inappropriate conversations with Children; DHS social worker also stated
Mother made little progress with her FSP objectives, as shown by Mother’s
failure to complete her mental health objective and Mother’s inability to
apply what she learned in parenting classes to her interactions with
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Children; Mother continuously failed to remedy causes that brought Children
into system, and Mother is unable to provide stability Children need;
Mother’s limited success with services provided by DHS demonstrates that
Mother cannot overcome her barriers to effective parenting and Children are
no closer to reunification with Mother than when Children entered system
forty-three months ago; at this point, Children need permanency, which
Mother cannot provide; in light of Mother’s failure to remedy conditions that
brought Children into system and Mother’s inability to adequately perform
her parental duties, court concluded sufficient evidence existed for
termination of Mother’s parental rights under 23 Pa.C.S.A. § 2511(a)(1),
(a)(2), (a)(5), and (a)(8); (3) termination of Mother’s parental rights will
not cause Children to suffer irreparable harm; Children’s foster parent, their
maternal grandmother, has parent-child bond with all four Children; DHS
social worker testified Children have lived as family with maternal
grandmother for last three and one-half years, and Children are doing very
well in pre-adoptive home; maternal grandmother is actively involved in
Children’s school, activities, and medical appointments, while Mother is
minimally involved in these events; Mother visits Children for only 2 hours
every Saturday and is minimally involved in Children’s lives; Mother and
Children do not share parent-child bond due to Mother’s lack of contact with
Children and termination of Mother’s parental rights would not destroy
existing and necessary relationship between Mother and Children; record
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establishes Mother’s lack of compliance with FSP objectives, Mother’s
inability to care for Children, and lack of parent-child bond between Mother
and Children, all of which justify termination of Mother’s parental rights;
thus, court correctly terminated Mother’s parental rights under Section
2511(b) and changed goal to adoption, which will best serve emotional
needs and welfare of Children). Accordingly, we affirm on the basis of the
trial court’s opinion.
Judgments affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
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IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPHIA 2015 MA. Y I 5 AM 11: 0 I
FAMILY COURT DIVISION
PROPROTHY
In re: In re: In the Interest ofB.K., H.K., E.K., T.K. : CP-DP-0025102-2010
: CP-DP-0025103-2010
: CP-DP-OOtJl.500·-MII
: CP-DP:)1'0001501-2011
: CP-51-AP-0000301-2013
APPEAL OF: M.K., Mother : CP-51-AP-0000303-2013
: CP-51-AP-0000304-2013
: CP-51-AP-0000302-2013
: 716 EDA 2015
: 715 EDA 2015
: 711 EDA 2015
: 712 EDA 2015
OPINION
Fernandes, J.:
Appellant, M.K. ("Mother"), appeals from the orders entered on February 11, 2015, granting the
petitions filed by the Department of Human Services of Philadelphia County ("DHS") to
involuntarily terminate her parental rights to B.K. ("Child #1 "), H.K. ("Child #2), E.K. ("Child
#3"), and T.K. ("Child #4"), collectively referred to as "children", pursuant to the Adoption Act,
23 Pa.C.S.A. §2511 (a)(l), (2), (5), (8), and (b). Maureen F. Pie', Esquire, counsel for Mother,
filed a timely Notice of Appeal with a Statement of Errors Complained Of.
Factual and Procedural Background
This family initially became involved with DHS on September 25, 2009, when DHS received a
GPS report alleging that one of children's siblings had a scab on the back of his head, his clothes
were very soiled, and he had severe tooth decay. (DHS Exhibit A). This report was
substantiated. (DHS Exhibit A). On November 3, 2009, DHS conducted a home assessment on
Father's home, where the family was living, and DHS observed that the home was deplorable,
there was no operable gas service in the home, there was limited food in the home, there were
holes in the floor, the home was infested with rodents and roaches, and there was a strong urine
odor throughout the home. (DHS Exhibit A). DHS also observed that the children were dirty
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and DHS learned that the children shared one mattress, which was dirty and smelled of urine.
(DHS Exhibit A). On November 3, 2009, a safety plan was developed stating that the children
would live with K.N., Paternal Grandmother. Shortly thereafter, sometime in November of
2009, there was a verbal altercation between Mother and Paternal Grandmother and the family
left Paternal Grandmother's home.
On November 20, 2009, A Family Service Plan ("FSP") meeting was held. (DHS Exhibit A).
Mother's objectives were to learn and use non-violent, non-physical discipline methods, to
provide children with adequate supervision at all times, to meet children's daily basic needs,
learn and understand age appropriate behavior and expectations for children, and to provide
adequate and safe living conditions. (DHS Exhibit A). Mother signed the FSP. (N.T. 02/06/15,
pg. 18). Subsequently, the family became transient and began living in overcrowded conditions.
(DHS Exhibit A). In February 2010, DHS filed an urgent petition for Child #1 and Child #2.
On June 23, 2010, Child #1 and Child #2 were adjudicated dependent temporary commitment
was discharged and Child #1 and Child #2 were committed to DHS based on present inability of
parents. Mother was ordered to begin parenting classes, to take advantage of the supports
provided by the shelter where she resided, and participate in !HIPS. (DHS Exhibit A). On
December 8, 2010, court supervision was terminated by the Honorable Donna Woelpper.
Throughout 2010 and 2011, Child # 1 had poor behavior in school and had a significant number
of absences from school. (DHS Exhibit A). On July 28, 2011, an Order for Protective Custody
("OPC") was obtained for Child #1, Child #2, and Child #3. On August 8, 2011, Child #1, Child
#2, and Child #3 were adjudicated dependent with DHS supervision. Child #4 remained in the
custody of Mother, with IHPS monitoring her care. (DHS Exhibit A). DHS was ordered to refer
both Parents for parenting capacity evaluations and life skills training. (OHS Exhibit A).
Mother subsequently became transient and refused to disclose her whereabouts to DHS and
IHPS. (DHS Exhibit A). On September 19, 2011, Child #1 was diagnosed with adjustment
disorder and history of physical abuse. (DHS Exhibit A). On October 14, 2011, DHS received a
second GPS report alleging that a Philadelphia Electric Company worker went to the family's
home to tum off the electric service and found the home to be deplorable and uninhabitable.
(DHS Exhibit A). The report stated that a two year old child opened the window shade and the
child was filthy. (OHS Exhibit A). The police arrived and transported the children in the home
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to DHS. (DHS Exhibit A). The report was substantiated. (DHS Exhibit A). On October 14,
2011, DHS obtained an OPC for Child #4. On October 31, 2011, Child #4 was adjudicated
dependent and committed to DHS. Child #3 and Child #1 were also committed to DHS based on
present inability of parents. The court ordered for Mother to comply with parenting capacity
evaluations, sign releases of information regarding treatment programs, and comply with all FSP
objectives. On May 2, 2012, a permanency review hearing was held and Mother was found to be
minimally compliant with her FSP objectives, Mother was ordered to comply with all scheduled
appointments for her parenting capacity evaluation, and Mother was referred to Behavioral
Health Services ("BHS") for consultation. (DHS Exhibit A). On May 3, 2012, and on
September 12, 2012, FSP meetings were held. The gtHtt far ehildren V\>"ftS te "retttm te pareftt:."
Mother's objectives remained the same with additional objectives added: to stabilize mental
health problems by participating in a psychological evaluation, comply with the evaluation's
treatment recommendations, sign releases of information regarding mental health treatment,
understand how and why the children were injured, address deficits around mastery of age
appropriate developmental tasks by participating in the children's behavioral health services, and
maintain regular visits with children. (DHS Exhibit A). Mother attended the FSP meetings and
signed the FSP. (DHS Exhibit A). On July 19, 2012, Mother completed an intake appointment
with COMHAR but failed to follow up with treatment. (DRS Exhibit A). On November 1,
2012, a permanency hearing was held and Mother was found to be minimally compliant with her
FSP goals. DHS was ordered to refer Mother for a parenting capacity evaluation, refer Mother
again to the Achieving Reunification Center ("ARC"), and DHS was ordered to evaluate
Mother's new residence. (DHS Exhibit A).
On February 1, 2012, a permanency review hearing was held. Mother was ordered to follow
through with her parenting capacity evaluation and Mother was ordered to sign releases of
information regarding her mental health treatment. (DHS Exhibit A). On May 21, 2013, a
Petition for Involuntary Termination of Parental Rights was filed by DHS because Mother failed
to comply with her FSP objectives to facilitate reunification with her children. (DHS Exhibit A).
The termination hearing was trifurcated and testimony was taken on October 14, 2013, February
6, 2015, and February 11, 2015. Mother's parental rights were terminated on February 11, 2015.
(N.T. 02/11/15, pg. 6).
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Discussion:
On March 11, 2015, Ms. Pie' filed a Notice of Appeal with a Concise Statement of Errors that
did not abide by Pa.R.A.P. §1925. The Concise Statement of Errors did not concisely identify
each ruling or error that Mother intended to challenge pursuant to Pa.R.A.P. §1925(b)(4)(i) nor
did the Supplemental Statement of Errors state the errors complained of without unnecessary
detail pursuant to Pa.R.A.P. §2116(a). For the purpose of this appeal, the trial court consolidated
the issues Mother's raised in the Concise Statement of Errors to the following:
1. Did the trial court commit an error of law and abuse of discretion by failing to consider
Permanent Legal Custody ("PLC") as a reasonable alternative to terminating Mother's
parental rights'?
2. Did the trial court commit an error of law and abuse of discretion by involuntarily
terminating Mother's parental rights under 21 Pa.C.S.A. §251l(a), where the evidence
presented at trial was not clear and convincing to terminate Mother's parental rights?
3. Did the trial court commit an error of law and abuse of discretion by involuntarily
terminating Mother's parental rights under 23 Pa.C.S.A. §251 l(b), where DHS failed to
prove by clear and convincing evidence that involuntary terminating Mother's parental
rights would best serve emotional needs and welfare of the children?
Mother's first issue on appeal asks whether the trial court committed an error oflaw and abuse of
discretion by failing to consider PLC as a reasonable alternative to terminating Mother's parental
rights. A trial court may consider PLC upon the filing of a petition by a county children and
youth agency that alleges the dependent child's current placement is not safe, and the physical,
mental, and moral welfare of the child would best be served if subsidized permanent legal
custodianship ("SPLC") were granted. See In re S.B., 208 Pa.Super. 21, 943 A.2d 973, 983-984
(2008). Upon receipt of this petition, the court must conduct a hearing and make specific
findings focusing on the best interests of the child. See id. In order for the court to declare the
custodian a "permanent legal custodian" the court must find that neither reunification nor
adoption is best suited to the child's safety, protection and physical, mental and moral welfare.
See f..4.; see also 42 Pa.C.S.A. § 6351(f.l).
Permanent legal custody is not in the children's best interest because adoption is best suited for
the children's safety, protection and physical, mental and moral welfare. Reunification with
Mother is not possible because Mother has failed to make any progress in the forty-three months
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the children have been in placement, Mother has not completed a majority of her FSP objectives,
and Mother lacks capacity to parent. Mother has been unable to put the priority of her children's
needs over her own needs. Child #1 is twelve years old, Child #2 is nine years old, Child #3 is
five years old, and Child #4 is four years old. It would not be in the children's best interest to be
reunified with Mother because the children have been living and being taken care of by
Grandmother for the past three and a half years. (N.T. 02/06/15, pgs. 25-26, 35-36). Mother has
not been able to show that she can parent these children and she lacks capacity to parent.
Adoption is best suited for the children. (N.T. 10/14/14, pgs. 53-54). Grandmother is ready,
willing, and able to adopt these children and being adopted by Grandmother is in their best
As to the second issue on appeal, the grounds for involuntary termination of parental rights are
enumerated in the Adoption Act at 23 Pa.C.S.A. §2511(a). The Adoption Act provides the
following grounds for involuntary termination:
(a) General Rule - The rights of a parent, in regards to a child, may be terminated after a
petition is filed on any of the following grounds:
(1) The parent, by conduct continuing for a period of at least six months immediately preceding
the filing of the petition, has evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.
In proceedings to involuntary terminate parental rights, the burden of proof is on the party
seeking termination to establish by clear and convincing evidence grounds for termination. In re
Adoption o(Atencio, 539 Pa. 161, 650 A.2d 1064 (1994). To satisfy section (a)(l), the moving
party must produce clear and convincing evidence of conduct sustained for at least six months
prior to the filing of the termination petition, which reveals a settled intent to relinquish parental
claim to a child or a refusal or failure to perform parental duties. The standard of clear and
convincing evidence is defined as testimony that is so clear, directly weighty and convincing as
to enable the trier of fact to come to a clear conviction without hesitance of the truth of precise
facts in issue. In re D.JS., 1999 Pa. Super. 214 (1999). In Pennsylvania, a parent's basic
constitutional right to the custody and rearing of his child is converted upon failure to fulfill his
or her parental duties, to the child's rights to have proper parenting and fulfillment of his or her
potential in a permanent, healthy, safe environment. In re B.NM, 856 A.2d 847, 856 (Pa. Super.
2004).
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Mother did not achieve a majority of her FSP objectives throughout the forty-three months that
children were in placement, even though Mother was made aware of her FSP objectives on
numerous occasions because she attended the FSP meetings and was involved in single case
planning. (N.T. 02/06/15, pg. 113, 117). FSP meetings were held every six months and
objectives were made for Mother, but Mother did not achieve her FSP objectives throughout the
life of this case. (N.T. 02/06/15, pg. 13, 20, 117). Since 2011, only at one permanency review
hearing was Mother found to be substantially compliant with her FSP objectives. Mother was
found to be moderately compliant at two permanency review hearings and at every other
permanency review hearing, Mother was found to be minimally compliant. Mother was not
compliant with her rnentat-health objeetive;-M:other--,t-atteirttt--tne:--s1,eeta11~hiare:ntt1t----
classes she was ordered to go to, and Mother was discharged from the Achieving Reunification
Center ("ARC") due to lack of participation. (N.T. 02/06/15, pgs. 13, 20, 106, 117). The DHS
social worker testified that throughout her time on this case, Mother was minimally compliant
with her FSP objectives because a majority of Mother's goals remained in place. (N.T. 02/06/15,
pgs. 22-23). Throughout the life of this case, Mother has not made any progress. Even though
Mother completed two parenting classes, she was never able to apply what she learned. The
DHS social worker testified that one of the goals of parenting classes was to see a change in how
the parent parented her children and Mother showed no change, therefore that goal was not
completed. (N.T. 10/14/14, pg. 19). During visits, Mother was not implementing safety related
goals, she was unable to intervene without assistance from the social worker, and she did not
recognize potential dangerous situations that the children could place themselves in. (N.T.
10/14/14, pgs. 15, 19, 39, 42-43). Mother's visits were always supervised and the DHS social
worker who supervised Mother's visits testified that she would not have made a recommendation
that Mother's visits be changed to unsupervised visits because Mother is not able to monitor all
four children at the same time so they would be unsafe without DHS supervision. (N.T.
10/14/14, pgs. 29, 43). Furthermore, during the visits Mother would talk to the children as if
they were her friends, she would have inappropriate conversations about adult issues, and she
often used profanity. (N.T. 10/14/14, pgs. 49-50). Mother was referred to BHS and received an
evaluation in 2012, but Mother failed to follow up with treatment. (N.T. 02/06/15, pg. 14). All
the services were offered to help Mother reunify with her children. Mother claimed that she did
not complete her mental health objective because she did not have insurance but the DHS social
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worker testified that DHS took Mother to BHS at least two times to connect her with free mental
health services but Mother never followed up with treatment. (N.T. 02/06/15, pgs. 14, 31). The
record establishes that DHS provided and offered reasonable and adequate services to remedy
the conditions that brought children into care. Mother has failed to utilize all the resources
provided by DHS to fulfill her affirmative duty to parent children.
On May 21, 2013, DHS filed the petition for termination. Mother has continuously failed to
perform her parental duties towards children. Mother's refusal to perform her parental duties has
continued for at least six months prior to the filing of the termination petition, as established by
the record. As a result, all the elements of the Adoption Act, 23 Pa.C.S.A. §251 l(a)(l) have
been fully satisfied.
The Adoption Act at 23 Pa.C.S.A. §2511(a)(2) also includes, as grounds for involuntary
termination of parental rights, the repeated and continued incapacity, abuse, neglect or refusal of
the parent that causes the children to be without essential parental care, control, or subsistence
necessary for their 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. This ground is
not limited to affirmative misconduct. It may include acts of refusal to perform parental duties
but more specifically on the needs of the children. Adoption of C.A. W., 683 A.2d 91, 914 (Pa.
Super. 1996). Courts have further held that the implications of the parent's limited success with
services geared to remedy the barriers to effective parenting can also satisfy the requirements of
§251 l(a)(2). In the matter ofB.L. W, 843 A.2d 380 (Pa. Super. 2004), the court's grave concerns
about the Father's ability to provide the level of protection, security and stability that his children
needed was sufficient to warrant termination. Id. at 388.
Mother's lack of care and inadequate supervision of her children led to the children's
dependency adjudication and to their placement in foster care on August 8, 2011. Mother has
continuously failed and refused to remedy the causes that brought children into care. Mother is
unable and unwilling to provide the level of protection, security and stability that the children
need. Because of Mothers unwillingness to comply with her treatment plan, Mother is unable to
protect her children and keep them safe. Mother lacks capacity to parent as Mother has not been
able to show that she can parent during her supervised visits. A OHS social worker testified that
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there have been ongoing concerns about Mother because Mother cannot manage all of her
children during the visits and Mother always required OHS intervention during her visits with
children. (N.T. 10/14/14, pgs. 14-15). At one point Child #1 requested that she not participate in
the visits because they were upsetting her. (N.T. 10/14/14, pg. 41). Mother continues to be
incapacitated and Mother's limited success with services that were provided by OHS prove that
the barriers to effective parenting cannot be remedied by Mother. Mother refuses to perform her
parental duties and is unable to remediate the causes that brought children into care. After forty-
three months of being in placement, children need permanency, which Mother cannot provide.
OHS has met its burden under 23 Pa.C.S.A. §251 l(a)(2).
OHS also requested termination of parental rights under 23 Pa.C.S.A. §251 l(a)(5), whereby
children may be removed by court or voluntary agreement and placed with an agency at least six
months, conditions which led to the placement of the children continue to exist, the parent cannot
or will not remedy those conditions within a reasonable period of time, the services reasonably
available to the parent are not likely to remedy the conditions leading to placement, and
termination best serves the children's needs and welfare. OHS, as a child and youth agency,
cannot be required to extend services beyond the period of time deemed as reasonable by the
legislature or be subjected to herculean efforts. A child's life cannot be put on hold in hope that
the parent will summon the ability to handle the responsibilities of parenting. In re J. T., 817
A.2d 509 (Pa. Super. 2001). As a consequence, Pennsylvania's Superior Court has recognized
that the children's needs and welfare requires agencies to work toward termination of parental
rights when a child has been placed in foster care beyond reasonable temporal limits and after
reasonable efforts for reunification have been made by the agency, that have resulted unfruitful.
This process should be completed within eighteen months. In re N. W., 851A.2d 508 (Pa. Super.
2004).
Children have been in care for a period of forty-three months. Mother continues to be unable to
summon the ability to handle her responsibilities of parenting and continuously fails to perform
her parental duties and cannot remedy the conditions that led to the children's placement.
Hence, Mother's lack of parental skills and minimal compliance with her FSP objectives compel
this court to conclude that the children are no closer to be reunified with Mother. The children's
life cannot be put on hold any longer in hope that Mother will remedy the conditions that led to
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placement within a reasonable amount of time. Mother was aware of her FSP objectives, but
was unable to complete them within forty-three months, even though DHS made services
available and the court found DHS made reasonable efforts at every hearing. (N.T. 02/06/15,
pgs. 13-14). The DHS social worker testified that DHS went with Mother to BHS on at least two
occasions to get her free services for her mental health treatment but Mother never followed up.
(N.T. 02/06/15, pgs. 14, 31). Throughout the life of this case, Mother was never able to meet a
majority of her objectives. For the past forty-three months, Mother was unable to demonstrate
that she had the capacity to parent. The needs and welfare of Child dictate that termination and
adoption would best serve her permanency needs. DHS met its burden under the Adoption Act,
23 Pa.G.8.A. §251 I,W~i-.------------------------
As to 23 Pa.C.S.A. §251 l(a)(8), DHS met its burden by clear and convincing evidence that
children have been out of Mother's care for twelve months or more, and the conditions leading to
the placement still exits, and termination would best serve the needs and welfare of Child.
Children have been continuously under DHS' custody for a period of forty-three months. The
conditions that led to children's placement still exist. Despite the good faith efforts of DHS to
make services available, it is in the best interest of the children to terminate Mother's parental
rights. (N.T. 10/14/14, pgs. 53-54).
The trial court will now consider Mother's last issue on appeal, whether the termination of
parental rights would best serve the emotional needs and welfare of Child under 23 Pa.C.S.A.
§2511(b). The party seeking termination must prove by clear and convincing evidence that the
termination is in the best interest of the child. The best interest of the child is determined after
consideration of the needs and welfare of the child, such as love, comfort, security and stability.
In re Bowman, 426 Pa. Super. 647, A.2d 217 (1994). See also In re Adoption o(T.B.B., 835
A.2d 387, 397 (Pa. Super. 2009). Pursuant to 23 Pa.C.S.A. §25ll(b), the trial court must also
consider what, if any bond exists between a parent and their child. In re Involuntary Termination
o(C.W.S.M and KA.L.M, 839 A.2d 410, 415 (Pa. Super. 2003). The trial court must examine
the status of the bond to determine whether its termination "would destroy an existing, necessary
and beneficial relationship." In re Adoption of T.B.B., 835 A.2d 387 (Pa. Super. 2003). In
assessing the parental bond, the trial court is permitted to rely upon the observations and
evaluations of social workers. In re KZ.S., 946 A.2d 753, 762-763 (Pa. Super. 2008). Under 23
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Pa.C.S.A. §251l(b), 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, if
found to be beyond the control of the parent.
Children will not suffer any irreparable harm by terminating Mother's parental rights. (N.T.
10/14/14, pg. 56). At every permanency review hearing, the trial court found that DHS made
reasonable efforts. Foster parent, the children's Grandmother, has a parent/child bond with all
four children. (N.T. 02/06/15, pgs. 25-26, 124). The DHS social worker testified that the
children are doing really well in their pre-adoptive home and that they have bonded with their
Grandmother. (N.T. 02/06/15, pgs. 25-26, 124). For the last three and a half years, the children
have lived with Grandmother as a family and they rely on Grandmother. (N.T. 02/06/15, pgs.
25-26, 35-36). Grandmother is actively involved in the children's school, activities, and medical
appointments. (N.T. 02/06/15, pg. 27). Mother is not involved in the children's school,
activities, or medical appointments even though Mother was aware of the different events and
activities that were going on at the children's school. (N.T. 02/06/15, pg. 32). Mother was
invited to participate Child #1 's therapy but Mother never availed herself. (N.T. 10/14/14, pgs.
27-28), (N.T. 02/06/15, pg. 37). Mother is not involved in the children's lives. Mother and the
children do not have a parent/child bond, the DHS social worker testified that Mother and
children have a peer relationship, not a parent/child relationship. (N.T. 10/14/14, pgs. 48, 50).
Since children have been in placement, Mother has only seen them for two hours every Saturday.
(N.T. 02/06/15, pg. 73). The entire time that the children have been in placement, Mother's
contact with them has been very limited. Terminating Mother's parental rights would not
destroy an existing necessary relationship between Mother and children.
It is in the best interest of children to be adopted. (N.T. 10/14/14, pgs. 53-54). DHS has
attempted to make available reasonable services to Mother but Mother has continuously failed to
participate in services and Mother has failed to follow up with treatment recommendations. The
trial court has found reasonable efforts at every permanency review hearing. Despite the good
faith efforts of DHS to make services available, it is in the best interests of children to terminate
Mother's parental rights. (N.T. 10/14/14, pgs. 53-54). The court found that the testimonies of
the DHS witnesses were credible. Additionally, the record clearly establishes that Mother's
parental rights are being terminated due to her lack of non-compliance with her FSP objectives,
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I ' ,
being unable to provide for or care for children, no parent/child bond, and no irreparable harm
would occur by terminating Mother's parental rights. Terminating Mother's parental rights is
not due to environmental factors. Children have been in placement for forty-three months and
they need permanency. Consequently, the trial court did not err in terminating Mother's parental
rights and changing the goal to adoption, as it would best serve the emotional needs and welfare
of children.
Conclusion:
For the aforementioned reasons, the court finds that DHS met its statutory burden by clear and
convmcmg evidence regardmg ffie termmahon of Mother's parental nghts pursuant to 23
Pa.C.S.A. §251 l(a) and (b). The court also finds that it will not cause irreparable harm to
children to sever any bond, and it is in the best interest of children since it would best serve their
emotional needs and welfare.
Accordingly, the orders entered on February 11, 2015, terminating the parental rights of Mother,
M.K., should be affirmed.
By the court,
~~~9
: /
Jds.ijph Fe andes, J.
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CERTIFICATE OF SERVICE
I hereby certify that this court is serving a copy of this duly executed Opinion upon all
parties or their counsel on May 15, 2015, by regular mail and/or fax. The names and addresses of
all persons served are as follows:
Maureen Pie', Esquire
8 Summit St - Ste 200
Philadelphia, Pennsylvania 19118
Attorney for Mother
Janice Sulman, Esquire
100 South Broad Street - Ste 1518
Phi)adelphla, Pennsyhrania 19110
Attorney for Father
Jeri Behrman, Esquire
City of Philadelphia Law Department
1515 Arch Street, 161h Floor
Philadelphia, Pennsylvania 19102
Attorney for DHS
Mary Cole, Esquire
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, Pennsylvania 19102
Child Advocate
~
BY:v:W~
Ana R. Melhor
/It
Judicial Fellow/Law Clerk
Hon. Joseph L. Fernandes
Judge Court of Common Pleas
First Judicial District of Pennsylvania
Family Division
1501 Arch Street, Room 1431
Philadelphia, Pa. 19102
Telephone: (215)-686-2660