In the Interest of J.V.F., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.V.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.H., MOTHER :
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:
:
: No. 424 EDA 2017
Appeal from the Decree Entered January 17, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0001212-2016
IN THE INTEREST OF: J.V.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.H., MOTHER :
:
:
:
: No. 427 EDA 2017
Appeal from the Order Entered January 17, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001724-2015
BEFORE: LAZARUS, MOULTON, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED AUGUST 25, 2017
In these consolidated appeals,1 A.H. (“Mother”) appeals from the
January 17, 2017 decree terminating her parental rights to her son, J.V.F.
____________________________________________
1
On March 15, 2017, this Court sua sponte consolidated Mother’s two
appeals – one challenging the decree terminating Mother’s parental rights
and one challenging the trial court’s order changing the goal to adoption.
See Pa.R.A.P. 513.
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(“Child”), born in October 2014, and from the order dated the same date
changing Child’s permanency goal to adoption.2 We affirm.
DHS opened a case file for Child in December 2014 due to drug and
alcohol concerns with Mother. N.T., 1/17/17, at 6. On August 18, 2015, the
trial court adjudicated Child dependent. Child was placed with, and
continues to reside with, Paternal Grandmother. The trial court summarized
the relevant factual and procedural history as follows:
On December 24, 2014 an initial Single Case Plan (SCP)
was created. The SCP objectives for Mother were to
address any drug and alcohol abuse issues[;] comply with
a drug and alcohol assessment; comply with
recommendation; []only take medication as prescribed;
refrain from use [of] any illegal drugs or alcohol[;] and
participate in individual mental health therapy.[3]
...
On November 2, 2015, it was reported that Mother was
scheduled for a drug and alcohol assessment on
September 21, 2015 and did not attend. The Court
ordered Mother to follow all SCP objectives; and referred
Mother to [the Clinical Evaluation Unit (“CEU”)] for a full
drug and alcohol screen with dual diagnosis, an
assessment, monitoring, and three random drug screens
prior to the next court date.
____________________________________________
2
Child’s father is deceased.
3
The most recent SCP objectives for Mother were to “comply with a
drug and alcohol assessment, to comply with those recommendations, to
only take medications as prescribed, [to] not use any illegal drugs or alcohol
and to participate in individual therapy, as well as maintain stable housing.”
N.T., 1/17/17, at 7.
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On January 21, 2016, it was reported that on November 2,
2015, Mother had a positive drug screen and that on
December 7, 2015, Mother tested positive for
benzodiazepines and opiates.
On January 25, 2016, the Court ordered that if Mother’s
program did not have drug screens, Mother was to be
referred to CEU for three random screens.
On March 2, 2016, the Court ordered Mother to sign [a]
release of information form.
...
On May 9, 2016, Mother tested positive for
benzodiazepines, creatinine, and opiates.
The CEU reported that Mother failed to come to CEU on
June 10, 2016 to provide documentation for her current
treatment status.
Trial Ct. Op., 3/27/17, at 1-2.
On December 9, 2016, DHS filed a petition to terminate Mother’s
parental rights to Child and to change Child’s permanency goal to adoption.
On January 17, 2017, the trial court held a hearing on the petition. At the
conclusion of the hearing, the trial court orally delivered its decree
involuntarily terminating Mother’s parental rights and changing Child’s
permanency goal to adoption. The trial court entered its decree on that
same date. On January 30, 2017, Mother timely filed a notice of appeal and
concise statement of errors complained of on appeal.
On appeal, Mother raises the following issues for our review and
determination:
1. Did the [t]rial judge rule in error that the
Philadelphia City Solicitor’s Office [met] its burden of
proof that Mother’s parental rights to her [child]
should be terminated.
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2. Did the trial judge rule in error that the
termination of Mother’s parental rights would best
serve the needs and welfare of the [child].
3. Did the trial judge rule in error by changing the
goal to adoption.
Mother’s Brief at 3.
We first address Mother’s claim regarding the termination of her
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 quotation
marks omitted). If the trial court’s decision is supported by competent
evidence, this Court must affirm the decision. In re L.M., 923 A.2d 505,
511 (Pa.Super. 2007).
Termination of parental rights is governed by statute. 23 Pa.C.S. §
2511. The portion of the statute relevant to this appeal provides as follows:
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
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(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.
...
(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
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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 notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).
“In termination cases, the burden is upon [the petitioner] to prove by
clear and convincing evidence that its asserted grounds for seeking the
termination of parental rights are valid.” In re R.N.J., 985 A.2d 273, 276
(Pa.Super. 2009). We have explained that “[t]he standard of clear and
convincing evidence is defined as testimony 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.’” Id. (quoting
In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)).
The trial court terminated Mother’s parental rights pursuant to section
2511(a)(1), (2), (5), (8) and (b). This Court need only agree with the trial
court’s decision as to any one subsection of section 2511(a), as well as
section 2511(b), to affirm the termination. See In re B.L.W., 843 A.2d
380, 384 (Pa.Super. 2004) (en banc). We will examine the facts of this case
under section 2511(a)(1).
As it relates to section 2511(a)(1), the pertinent inquiry for our review
is as follows:
To satisfy Section 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
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the termination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to
perform parental duties. . . . 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.
In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of
Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). Although
the six months immediately preceding the filing of the petition are the most
critical to the analysis, “the trial court must consider the whole history of a
given case and not mechanically apply the six-month statutory provision.”
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004). Additionally, to the
extent that the trial court based its decision to terminate parental rights
pursuant to subsection (a)(1), “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. § 2511(b). In In re C.M.S., we explained, “[a] parent is required to
exert a sincere and genuine effort to maintain a parent-child relationship;
the parent must use 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.” 832 A.2d
457, 462 (Pa.Super. 2003).
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Once the evidence establishes a failure to perform parental duties or a
settled purpose of relinquishing parental rights, the trial court must then
engage in three additional lines of inquiry: “(1) the parent’s explanation for
his or 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).” In re Z.S.W., 946 A.2d 726, 730
(Pa.Super. 2008) (quoting In re Adoption of Charles E.D.M., 708 A.2d 88,
91 (PA. 1998)).
In granting DHS’s petition for involuntary termination, the trial court
determined as follows:
In the instant matter, Mother was given [SCP] objectives
in December 2014 to address issues of drug and alcohol
abuse and individual mental health treatment/therapy.
Parenting classes for Mother [were] later incorporated in
Mother’s SCP objectives. Testimony of the social worker
revealed[] Mother failed to provide documentation of
completion of mental health treatment. Moreover, Mother
failed to demonstrate she could successfully complete an
intensive outpatient drug and alcohol treatment program.
Mother[] failed to maintain continuous participation in a
dual diagnosis treatment of the several programs she
attended. Mother failed [to] maintain sobriety for a
substantial period of time[.] Mother testified she tested
positive for benzodiazepines, marijuana and opiates on
December 12, 2016. Furthermore, Mother testified she did
not attend several request for random drug screens.
Testimony of the social worker revealed that one of the
drug and alcohol treatment centers stated Mother needed
to be reassessed for a higher level of care and failed to
stay for the reassessment.
Furthermore, testimony of the social worker revealed
Mother . . . completed only 4 of 12 sessions of parenting
classes during the seventeen (17) month life of the case.
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...
In the present matter, during the seventeen months (17)
[Child] has been in DHS care, Mother has struggled with
maintaining sobriety. The social worker’s testimony
revealed [M]other’s history of substance abuse and an
outstanding arrest warrant are the issues that necessitated
the child’s placement with DHS. Furthermore, testimony
revealed unsupervised visits were changed to supervised
due to Mother’s failure to provide documentation of mental
health [and] drug and alcohol treatment compliance.
Trial Ct. Op., 3/27/17, at 4-5 (internal citations to record omitted).
Mother argues that she has remedied the SCP goals put in place by
DHS. Namely, Mother asserts that she completed a chemical dependency
treatment program in July 2015, is currently enrolled in a thirty-day drug
and alcohol treatment program, and completed a parenting class.
We conclude that the record supports the trial court’s determination.
Child was initially removed because of concerns regarding Mother’s drug and
alcohol use, mental health issues, and housing. Contrary to Mother’s claims,
Mother’s substance abuse and mental health issues persist. Ana Arguendas,
the social worker assigned to Child, testified that she has not received any
documentation from Mother regarding her completion of drug and alcohol
treatment. N.T., 1/17/17, at 7-8. Indeed, Mother tested positive for drugs
at several court hearings, most recently on December 12, 2016, just one
month prior to the termination hearing. Id. at 10, 21. Arguendas also
testified that Mother only completed four of twelve sessions for parenting
classes during the life of this case. Id. at 12, 16. While testimony
presented supports the contention that Mother is attempting to address her
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substance abuse issues, she was not in a position to assume the caregiver
role for Child at the time of the termination hearing. Id. at 42. In fact,
Mother did not seek drug treatment until after DHS filed its termination
petition. Id.; see also 23 Pa.C.S. § 2511(b) (“With respect to any petition
filed pursuant to [subsection (a)(1)], the court shall not consider any efforts
by the parent to remedy the conditions described therein which are first
initiated subsequent to the giving notice of the filing of the petition.”).
Thus, the record confirms that Mother refused or failed to perform
parental duties for the six months immediately preceding the filing of DHS’s
termination petition on December 9, 2016. The record establishes that, due
to Mother’s noncompliance with mental health and drug and alcohol
treatment, Mother’s visits with Child were reduced to supervised visits, once
per week. N.T., 1/17/17, at 19-20; Permanency Review Order (Non-
Placement), 5/9/16, at 1. Although Mother made an effort to attend the
visits she had with Child, Mother failed to address the concerns expressed by
the court, which ultimately led to Child’s removal. Accordingly, we conclude
that the trial court did not abuse its discretion by involuntarily terminating
Mother’s parental rights to Child pursuant to section 2511(a)(1).
Mother next argues the trial court erred in finding termination of her
parental rights would best serve the developmental, physical, and emotional
needs and welfare of Child under section 2511(b).
“Section 2511(b) ‘focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional needs and
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welfare of the child.’” In re Adoption of C.D.R., 111 A.3d 1212, 1219
(Pa.Super. 2015) (quoting In re Adoption of J.M., 991 A.2d 321, 324
(Pa.Super.2010)). “Intangibles such as love, comfort, security, and stability
are involved in the inquiry into the needs and welfare of the child.” In re
C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005). 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.The mere finding of a parent-child bond does not preclude termination of
parental rights. Rather, 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, 397
(Pa.Super. 2003). “[A] court may properly terminate parental bonds which
exist in form but not in substance when preservation of the parental bond
would consign a child to an indefinite, unhappy, and unstable future devoid
of the irreducible minimum parental care to which that child is entitled.” In
re J.W., 578 A.2d 952, 958 (Pa.Super. 1990) (emphasis in original).
In addressing the best interests and welfare of Child, the trial court
found:
In the instant matter, the testimony established that
[Child] would not suffer any irreparable emotional harm if
Mother’s parental rights were terminated. Testimony of
the social worker was that [Child] and his foster parent,
paternal grandmother, are very bonded and attached.
Furthermore, the social worker testified [Child] is
flourishing extremely well and acknowledges his foster
parent as “Mom”. Testimony established there was a
parent/child bond between [Child] and his foster parent
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which did not exist between [Child] and his biological
mother. Foster parent testified she loved [Child] and
would be prepared to adopt [Child] if it became the [trial
court’s] goal.
Trial Court Opinion, 3/27/17, at 6 (internal citations omitted).
The record supports the trial court’s finding that Child’s primary bond
is with his foster mother, Paternal Grandmother, rather than Mother.
Further, the record supports the trial court’s finding that Child will not suffer
irreparable harm if Mother’s parental rights are terminated. It was within
the trial court’s discretion to accept Arguendas’ testimony, and to conclude
that the benefits of a permanent home with Paternal Grandmother would
outweigh any emotional distress Child might experience if Mother’s parental
rights were terminated.
Based on the record before us, we find no error or abuse of discretion
in the trial court’s conclusion regarding subsection (b) that Child’s
developmental, emotional, and physical needs and welfare are best met by
terminating Mother’s parental rights. Where the trial court’s determination
is supported by the record, this Court must affirm. See In re R.L.T.M., 860
A.2d 190, 191 (Pa.Super. 2004).
Finally, we address Mother’s challenge to the order changing the goal
for Child to adoption.
In cases involving a court’s [decree] changing the
placement goal . . . to adoption, our standard of review is
abuse of discretion. To hold [that] the trial court abused
its discretion, we must determine that its judgment was
manifestly unreasonable, that the court disregarded the
law, or that its action was a result of partiality, prejudice,
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bias or ill will. While this Court is bound by the facts
determined in the trial court, we are not tied to the court’s
inferences, deductions and conclusions; we have a
responsibility to ensure that the record represents a
comprehensive inquiry and that the hearing judge has
applied the appropriate legal principles to that record.
Therefore, our scope of review is broad.
In re S.B., 943 A.2d 973, 977 (Pa.Super. 2008) (internal citations and
quotation marks omitted). However, we are mindful that “[w]hen the trial
court's findings are supported by competent evidence of record, we will
affirm ‘even if the record could also support an opposite result.’” In re N.C.,
909 A.2d 818, 823 (Pa.Super. 2006) (quoting In re Adoption of R.J.S.,
901 A.2d 502, 506 (Pa.Super. 2006)).
Furthermore, this Court has stated,
Placement of and custody issues pertaining to
dependent children are controlled by the Juvenile Act [42
Pa.C.S. §§ 6301-65], which was amended in 1998 to
conform to the federal Adoption and Safe Families Act
(“ASFA”). The policy underlying these statutes is to
prevent children from languishing indefinitely in foster
care, with its inherent lack of permanency, normalcy, and
long-term parental commitment. Consistent with this
underlying policy, the 1998 amendments to the Juvenile
Act, as required by the ASFA, place the focus of
dependency proceedings, including change of goal
proceedings, on the child. Safety, permanency, and well-
being of the child must take precedence over all other
considerations, including the rights of the parents.
Id. (internal citations and footnotes omitted).
Section 6351(f) of the Juvenile Act provides in relevant part:
(f) Matters to be determined at permanency
hearing.-- At each permanency hearing, a court shall
determine all of the following:
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(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of
compliance with the permanency plan developed for the
child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current
placement goal for the child.
(5) The likely date by which the placement goal for the
child might be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
...
(9) If the child has been in placement for at least 15 of the
last 22 months or the court has determined that
aggravated circumstances exist and that reasonable efforts
to prevent or eliminate the need to remove the child from
the child’s parent, guardian or custodian or to preserve
and reunify the family need not be made or continue to be
made, whether the county agency has filed or sought to
join a petition to terminate parental rights and to identify,
recruit, process and approve a qualified family to adopt the
child unless:
(i) the child is being cared for by a relative best
suited to the physical, mental and moral welfare of
the child;
(ii) the county agency has documented a compelling
reason for determining that filing a petition to
terminate parental rights would not serve the needs
and welfare of the child; or
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to the
child’s parent, guardian or custodian within the time
frames set forth in the permanency plan.
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42 Pa.C.S. § 6351(f); see In re S.B., 943 A.2d at 977.
“The trial court must focus on the child and determine the goal with
reference to the child’s best interests, not those of the parents.” In re S.B.,
943 A.2d at 978. As this Court has held, “[a] child’s life simply cannot be
put on hold in the hope that the parent will summon the ability to handle the
responsibilities of parenting.” In re N.C., 909 A.2d at 824 (quoting In re
Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa.Super. 2003)) (alteration in
original).
Mother argues that the goal change was not in Child’s best interests.
Mother emphasizes that she participated in parenting classes, completed a
chemical dependence treatment program in July 2015, and is currently
enrolled in a thirty-day drug treatment program.
The trial court determined that the goal change to adoption would be
in Child’s best interest because Child had been in placement for over 17
months and was adjusting well in his foster home, and because Mother had
failed to meet any of her SCP goals established by DHS. N.T., 1/17/17, at
33-34.
The trial court’s findings of fact and conclusions of law are properly
supported in the record. Child was first placed with his paternal
grandmother on June 1, 2015, and Child had been in custody of DHS for a
period of more than 17 months at the time of the January 17, 2017 hearing.
N.T., 1/17/17, at 8; Trial Ct. Op., 3/27/17, at 1. DHS established the SCP
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goals for Mother, including: address drug and alcohol issues, only take
medications as prescribed, refrain from using illegal drugs and alcohol,
improve emotional/mental health, complete a full mental health assessment,
visit with Child as permitted and scheduled, attend parenting classes, and
address physical health issues. N.T., 1/17/17, at 7.
Mother has failed to demonstrate that she can successfully complete
an intensive outpatient drug and alcohol treatment program, having
attended six programs during the life of this case and failed to complete any
one of the six programs. Id. at 12. Moreover, Mother only completed four
of twelve sessions for parenting classes. Id.
Child has adjusted well living with Paternal Grandmother, referring to
her as “mom.” Id. at 8. Child is bonded to Paternal Grandmother.
Arguendas testified that Child is doing “extremely well” with Paternal
Grandmother, such that termination of Mother’s parental rights would not
cause irreparable harm to Child. Id.
Based upon this evidence, we conclude that the trial court did not
abuse its discretion in finding that Child’s welfare would best be served by
changing the goal to adoption. As this determination is supported by the
record, we may not disturb it on appeal. See N.C., 909 A.2d at 823.
Decree and order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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