Adoption of: D.J., Appeal of: C.J. ( 2018 )


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  • J-S56020-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: ADOPTION OF: D.J., A            :   IN THE SUPERIOR COURT OF
    MINOR                                  :        PENNSYLVANIA
    :
    :
    APPEAL OF: C.J., MOTHER                :
    :
    :
    :
    :   No. 670 MDA 2018
    Appeal from the Order Entered, March 20, 2018,
    in the Court of Common Pleas of Franklin County,
    Orphans' Court at No(s): 9-ADOPT-2018.
    IN THE INTEREST OF: D.J., A MINOR      :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    APPEAL OF: C.J., MOTHER                :
    :
    :
    :
    :
    :   No. 671 MDA 2018
    Appeal from the Order Entered, March 20, 2018,
    in the Court of Common Pleas of Franklin County,
    Juvenile Division at No(s): CP-28-DP-0000025-2016.
    BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.
    MEMORANDUM BY KUNSELMAN, J.:                  FILED DECEMBER 03, 2018
    J-S56020-18
    C.J. (Mother) appeals from the order that involuntarily terminated her
    rights to her 5-year-old son, D.J. (Child), pursuant to 23 Pa.C.S.A. §
    2511(a)(2); (a)(5); (a)(8); and (b).1, 2
    As evidenced by the dual caption, Mother initially raised matters relating
    to both the termination of her parental rights and the order changing the goal
    of the dependency case from reunification to adoption.         Mother has since
    abandoned the goal change portion of her contest; in her appellate brief, she
    sets forth two questions involved, both of which reference only the
    termination. First, she alleges there was insufficient evidence to support the
    grounds for termination under § 2511(a). Second, she alleges that even if
    there were grounds, termination would not be in Child’s best interests under
    § 2511(b).
    We are mindful of our well-settled standard of review:
    The standard of review in termination of parental rights cases
    requires appellate courts to accept the findings of fact and
    credibility determinations of the trial court if they are supported
    by the record. If the factual findings are supported, appellate
    courts review to determine if the trial court made an error of law
    or abused its discretion. A decision may be reversed for an abuse
    of   discretion    only    upon    demonstration      of    manifest
    unreasonableness, partiality, prejudice, bias, or ill-will. The trial
    court's decision, however, should not be reversed merely because
    ____________________________________________
    1 The court also terminated the rights of D.S. (Father) who did not appear for
    the termination hearing and does not appeal now.
    2Because there was no conflict, Child’s best interests and his legal interests
    were simultaneously represented by Attorney Kristen Hamilton. See N.T.,
    3/20/18, at 96-97.
    -2-
    J-S56020-18
    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) (citations and quotation marks
    omitted).
    Termination of parental rights is governed by Section 2511 of the
    Adoption Act, 23 Pa.C.S.A. §§ 2101–2938, which requires a bifurcated
    analysis.
    Initially, the focus is on the conduct of the parent. The party
    seeking termination must prove by clear and convincing evidence
    that the parent's conduct satisfies the statutory grounds for
    termination delineated in Section 2511(a). Only if the court
    determines that the parent's conduct warrants termination of his
    or her parental rights does the court engage in the second part of
    the analysis pursuant to Section 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 Adoption of C.D.R., 
    111 A.3d 1212
    , 1215 (Pa. Super. 2015) (citations
    omitted).
    In this case, the orphans’ court terminated Mother’s parental rights
    pursuant to Section 2511(a)(2), (5), (8), and (b). We need only agree with
    the orphans' court as to any one subsection of Section 2511(a), as well
    as Section 2511(b), in order to affirm. In re B.L.W., 
    843 A.2d 380
    , 384
    (Pa.Super.2004) (en banc), appeal denied, 
    863 A.2d 1141
     (Pa. 2004).
    The learned Judge Angela R. Krom authored an extensive, well-reasoned
    Rule 1925(a) opinion supporting the orphans’ court decision. Upon our review
    -3-
    J-S56020-18
    of the record, we discern no abuse of discretion. Because it thoroughly
    addresses the matters raised on appeal, we adopt, as our own, the orphans’
    court opinion insofar as it pertains to the termination issue.3 We direct the
    parties to attach a copy of the orphans’ court opinion to this memorandum in
    the event of further proceedings.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/03/2018
    ____________________________________________
    3We redact the parties’ names from the orphans’ court opinion, but otherwise
    keep intact the entirety of the document; we do not adopt that section of the
    opinion addressing Mother’s abandoned goal change issue.
    -4-
    Circulated 11/14/2018 10:01 AM
    Th
    IN THE COURT OF COMMON PLEAS OF THE 39T11 JUDICIAL
    -
    DISTRICT OF PENNSYLVANIA FRANKLIN COUNTY BRANCH
    In re: Adoption of                       :       Orphans' Court Division
    D.J., a minor.
    Date of Birth: 5/31/2012                         No. 9 -ADOPT-2018
    In the Interest of                               Juvenile Court Division
    D.J., a. minor
    Date of Birth: 5/31/2012                         CP-28-DP-0000025-2016
    OPINION sur Pa.R.A.P. 1925(a)
    Before the Court is C           Jbe's Notice of Appeal from the Decree
    entered March 20, 2018, terminating her parental rights to D.J., her minor son.
    Also before the Court is           J      's Notice of Appeal from this Court's Order
    of March 20, 2018, changing D.J.'s permanency goal from reunification to
    adoption. As no error occurred, this Court's prior determinations should be
    affirmed.
    STATEMENT OF CASE
    D.J. was born on May 31, 2012.                J     ("Mother") is the natural
    mother of D.J. D       S.       ("Father") is the natural father of D.J.
    On February 23, 2018, Franklin County Children and Youth Services ("the
    Agency") filed a Petition for the Involuntary Termination of Parental. Rights
    ("Petition") seeking to terminate the parental rights of Mother and Father.
    Concurrently, in the ongoing dependency action, the Agency requested this Court
    change the permanency goal from reunification to adoption. On March 20, 2018,
    this Court held a hearing ("TPR. hearing") on the Agency's Petition. Father,
    represented by Attorney Michael J. Connor, failed to appear at the TPR hearing.
    Mother, represented by Attorney Abigail. Salawage, appeared at the TPR hearing.
    Attorney Kristen Hamilton, D.J.'s legal counsel and Guardian Ad Litem ("GAL"),
    also participated in the TPR hearing.
    This Court issued Decrees dated. March 20, 2018, terminating both Mother's
    and Father's parental rights. Thereafter, based on the evidence presented at the
    TPR hearing, this Court changed D.J.'s permanency goal from reunification to
    adoption.. Mother filed a Notice of Appeal of a Children's Fast Track Appeal
    ,   .
    pursuant to Pa.R.A.P. 102, along with a Concise Statement of Matters Complained
    on Appeal on April 19, 2018. This Court now responds to Mother s claims of error
    in both the Juvenile Court and Orphans' Court matters.
    FACTUAL FINDINGS
    The Court will review the evidence presented at the TPR hearing before
    addressing Mother's arguments.
    The Agendy presented Elizabeth Johnston ("Ms. Johnston"). Ms. Johnston is
    the Agency's caseworker assigned to D.J.'s case. Transcript of Proceedings of
    Termination of Parental Rights Hearing, March 20, 2018, ("T.P. 3/20/18") at 6-7..
    Ms. Johnston testified the Agency initially received a referral regarding D.J.'s
    2
    family on September 20,2015., which reported the following issues:: chronic
    homelessness', substa.nce abuse2, extreme anger3, and lack of supervision. Id. at 8.
    The Agency attempted to locate the family, but was unsuccessful. Id. in February
    of 2016, the Agency received a second referral, which reported that D.T.'s older
    sister was missing from school and, the family was living at the New Hope Shelter
    in Waynesboro, PA. Id. By the end         of March of 2016, the Agency successfully
    located the family at the Super 8 Motel in Chambersburg, PA. Id. at 9.
    On. March 3,1,2016, the Agency conducted an unannounced visit to the
    hotel. Id. Upon arrival, Mother stated she was moving her family to another hotel;
    Mother expressed difficulties applying for food stamps and other support
    accommodations. Id. At this point, the Agency provided Mother with housing
    resources. Id. On April    1,   2016, the Agency conducted a second unannounced visit
    to the, hotel, and discovered Mr. L            asleep, and alone with    DJ. and his two
    sisters. Id. Mr. L         had difficulty waking up, appeared to be intoxicated, and
    refused a drug test. Id. The Agency also observed bruising on D.J.'s back. As .a
    result, D.J. was placed in the temporary legal and physical custody of the Agency
    on April 1, 2016. Id. at 9; see also Exhibit 1.
    The Agency believed the family was living in their van at this time.
    2 The Agency believed Mother and her husband    maw                C'Mr. 1111.11') were abusing
    morphine. Mother later testified she used prescription morphine for back pain, but stopped taking
    it "once it seemed to be :a problem for the courts." Id. at 68-69.
    3 The Agency believed Mr. 1.11111111exhibited extreme anger toward the, family.
    3
    After. Di. was placed in the custody of the. Agency, Mother and Father
    proposed names of family members as potential resources. Id. at 10-11. The
    Agency mailed kinship letters and received responses from. M
    R         L        and   EMS Hallir Id. at       11. Upon investigation, the Agency
    determined    MS                 ROM Lati, and         Eh FiLand             were not
    appropriate resources because they lacked sufficient living space for D.J. Id.
    at 11-
    12.   During this time period, D.J. displayed aggressive behavior in his initial
    foster
    home;. D.J. frequently bit, pushed, and hit other children, including his older sister
    M.J. Id. DJ. also displayed traumatic behavior; he talked and screamed in, his
    sleep, called himself a bad boy, and hit himself as punishment for taking blankets
    and food from his sisters. Id. For these reasons, the Agency referred D.J. to
    Pathways for counseling. Id.
    On May 13, 2016, D.J. was adjudicated dependent and his permanency goal
    was set for reunification. Id. at 10; see also Exhibits 3-4. Mother and Father were
    present for this dependency hearing. Id. As a result of D.J.'s adjudication and
    dependency, Mother was ordered to participate in a drug and alcohol assessment
    and follow the recommendations, subrnit to random drug screens, participate in a
    parental fitness, assessment and follow the recommendations, obtain and maintain
    financial stability, maintain stable housing, and maintain consistent visitation with
    4
    E
    mS
    His             is D.J.'s paternal grandmother. Rairriposs is Mr.   1.1111110's father.
    Mother's stepfather.
    4
    D.J. Id. at   -13.   Father was ordered to participate in .a parental fitness assessment,
    obtain and maintain financial stability, maintain stable housing, and maintain
    consistent visitation, with D.J. Id. at 1314.
    Ms. Johnston also testified regarding the services ordered for Mother. Id. at
    14. Ms. Johnston confirmed Mother participated in the parental fitness
    'assessment
    on June 17, 2016. Id. at 14; see also Petitioner's Exhibit 15. As a result of the
    parental fitness assessment, Mother 'was deemed incapable of parenting without
    any treatment or services. Id. at 14. Mother was recommended to complete
    outpatient therapy once per week for twenty-six weeks, maintain use of
    psychotropic medications, participate in a. pain management evaluation, participate
    in a dmg and alcohol evaluation, and complete parent training. Id. However,
    Mother failed to accurately report Mr.         LIPM's physical violence to the evaluator
    at this time. Id. at 40-41.
    Ms. Johnston confirmed Mother attended outpatient therapy from October of
    2016 to May 18, 2017. Id. at 14-15. After May 18, 2017, Mother stopped attending
    therapy due a conflict with her work schedule. In October of 2017 the Agency
    reminded Mother to complete her therapy. Id.: at 15. However, Mother incorrectly
    reported she completed her therapy and believed she did not need any counseling.
    5   Despite Mother's assertions at the time, the Agency believed physical violence was occurring
    in the household based on D.J.'s expressions and comments. Mother later testified she separated
    from Mr. LIMN due to his emotional and physical. abuse. Specifically, Mr. L         abused her
    by choking her. Id. at 65-66, 80.
    5
    Id. To date, Mother has not been successfully discharged from her therapy
    requirements.6 Id. Ms. Johnston also confirmed Mother completed the drug and
    alcohol assessment at Pyramid Healthcare. Id. at 15-16. Mother was not required to
    complete any additional services as a result of the drug and alcohol assessment. Id.
    However, Ms. Johnston testified Mother did not maintain continuous use of her
    psychotropic medications. Id.
    Ms. Johnston testified regarding Mother's requirement to submit to random
    drug screens. Id. at 16. On June 29, 2017, Mother tested positive for
    Tetrahydrocannabinol ("THC") and alcohol:7Id. at 16, 35., On October 2, 2017,
    Mother 'reffisedl to allow Ms. Johnston to drug test her despite being aware that a
    refusal is automatically deemed :a positive result.8 Id.
    Ms. Johnston testified regarding Mother's inability to obtain and maintain
    financial stability. Id. at 16-17. Ms. Johnston explained Mother has changed jobs
    several times throughout the period that D.J. has been in placement. Id. at 16.
    Recently,. Mother applied to jobs in Maryland,, but did not provide the Agency with
    any evidence   of employment and financial stability. Id.
    6 Mother later acknowledged she was discharged from PA Counseling due to lack of attendance.
    Mother explained she had several conflicts with work and stopped attending counseling around
    the middle of 2017.1d. at 62.
    7 MOther later testified she smoked marijuana for celebratory purposes when she leased her
    house on May 10, 2017. Id. at 63.
    a
    8 According to Mother, she requested to take the drug test at a later time. Id. 63, 77-78.
    6
    Ms. Johnston testified regarding Mother's inability to maintain consistent
    visitation with D.J. Id. at 17. The Agency approved Mother for two visits per week.
    between April 7, 2016 and December 5, 2017. Id. A majority of the visits were
    offered at the ABC House, except for a brief period, between February
    3, 2017 and
    April 10, 2017. Id. at. 17-18. During this period, the visits were
    only offered at the
    Agency because there were concerns for the safety of the children and parent
    educators at ABC. Id. In total, Mother attended only thirty-nine of the
    fifty-one
    offered two-hour visits. Id. at 17. Mother's last visit with D.J. at the ABC House
    occurred on November 16, 2017. Id. at 18.
    On December 5, 2017, Mother was discharged from the ABC House due to
    lack of attendance. Id. at 18. According to Mother, she had difficulties with
    transportation because she lived in Maryland and did not have a working car. Id. at
    18-19. Between December 5, 2017 and March 5, 2018 Mother failed to contact the.
    Agency. Id. at 18-19, 36-37. On March 5,2018, Mother called the. Agency and
    requested visitation with D.J. Id. at 19. The Agency scheduled a one -hour
    visitation with D.J. on March 16, 2018. Id. Ms. Johnston testified the visit went
    well, however Mother was a half-hour late; Mother took pictures and played with
    her children, including D.J.9 Id.
    9
    Ms. Johnston later testified D.J. was comfortable interacting with Mother, but does not ask to
    see Mother when he is not with her. Id. at 31-32. However, Mother later testified that D.J. asked
    her when he can come home. Id. at 65, 73, 89.
    7
    Ms. Johnston testified regarding Mother's limited participation in filial
    therapy.. Id. 19-20. Mother was offered to participate in filial therapy in order to
    build a stronger bond with D.J.1° Id. Mother only attended one session despite the
    fact that D.J. has been in therapy for over a year. Id. at 20. Mother also
    had limited
    contact with D.J.'s therapist. Id. at 20, 47-48. Currently, D.J.'s foster rnother
    attends therapy with D.J. Id. at 20.
    Ms. Johnston further testified regarding Mother's inability to secure stable
    housing. Id. Between April 4, 2016 and July of 2016, Mother lived, with various.
    friends. Id. Between August 11, 2016 and October 24, 2016, Mother lived in a
    homeless shelter. Id. Between October 24, 2016 and December 5, 2016, Mother
    lived with friends in Waynesboro, Franklin County; Pennsylvania. Id. Between
    December 5, 2016 and October 2, 2017, Mother lived with Mr. L                           in two
    different leased houses. Id. at 21. On October 2,2017,, Mother and Mr. L
    were evicted due to failure to pay rent; Mother then, separated from Mr.                LI
    and moved to Maryland. Id. On March 5, 2018, Mother reported she is now living
    between her mother's house and a boyfriend's house. Id. As of the date of the
    hearing, the Agency did not know where Mother was living. Id.
    Ms. JOhnston..later testified D.J. is diagnosed with attention..deficit hyperactivity disorder
    ("ADHD"),.oppoSitional defiant disorder ("ODD"), borderline intellectual functioning,. and
    adjustment .disorder with mixed.prohleinsof mood and conduct behavior Recently, D.J. has
    diSplayed.symptorns of reactive attachment disorder ("RAD"). j4. :at 45, 47-48: Mother later
    testified she only was aware of D.J.'s ODD and AHDH:diasposes. Id. at 90.
    8
    Ms. Johnston last testified regarding D.J.'s foster home. Id. at 27-28, 45. D.J.
    has been living in his current foster home for over a year." Id. at 28. Ms.
    Johnston
    explained D,J. has a parent-child relationship with his: foster family;
    D.J. is
    affectionate towards his foster parents and enjoys living with them.
    Id. Although
    D.J. calls them by their first name, he reported
    to. Ms. Johnston that he now shares
    the last name of his foster family.12 Id. at 28-29. Ms. Johnston
    also explained that
    D.J.'s foster family makes arrangements with his half-sister's foster
    family every
    other week, so the children can see, each :other. Id. at 29.
    Mother next presented herself. Id. at 55. Mother testified: regarding her
    requirements to obtain and maintain financial stability and secure stable housing.
    Id. Mother testified 'she does not, have a permanent residence, but receives her
    mail
    at her father's house, in Sabillasville, Maryland. Id. at 55-56. Mother testified she
    separated from Mr L                 in September of 2017 and is "working on starting
    over." Id. at 56-57. At this time, Mother is searching for full-time, employment to
    save up: for a car and residence." Id. Mother testified she was recently hired at a,
    1 '     lived in:three other foster homes prior to his current one. D.J. moved between the three
    foster homes due:to challenging:and sexualized behavior. The Agency believes trauma therapy
    and the placement with his current new foster helped correct this behavior.
    12. Ms. Johnston later testified the foster family has a daughter in
    college who 0.3,, refers to as his
    sister. D.J. also refers to another child in the foster family as' brother. Id. ãt47.
    13 Mother later explained she and her boyfriend J.B. are looking for a place to live together ld. at
    9
    temporary agency, but is waiting for a start date. '4 Id. at 57. Mother also helps her
    father, with landscaping, snow removal, and mowing jobs. Id. at 57-58.                If provided
    more time, Mother believed she could obtain housing within a month
    and a half.
    Id. at 72.
    Mother testified regarding, her requirement to maintain use of
    psychotropic
    medications. Id. at 59. Mother currently takes 20 milligrams of
    Lexapro once in the
    morning, one milligram of Xanax three times per day, and Trazodone
    at night. Id.
    Mother testified she has taken her medications since she started her therapy at
    PA
    Counseling. Id. Mother was initially prescribed her medications by a psychiatrist at
    PA Counseling, but' currently is prescribed her medications by a doctor at Mission
    of Mercy in Gettysburg, Pennsylvania.15 Id. at 59-60. Mother has no health
    insurance at this time. Id. at 61.
    Mother further' testified regarding her requirement to maintain consistent
    visitation with D.J. Id. at 63-64. Mother explained she visited D.J. twice a week for
    two hours. Id. at 64. She stopped visiting DJ. due to a lack of transportation.16 Id.
    at 64-65.. Mother also addressed the Agency's concerns regarding the lack of
    14 Mother explained she has reliable transportation' from her stepfather to get to this job
    when she
    starts.
    Mother testified she meets with 'a doctor once per month and is consistently taking her
    medications.
    16 Mother testified she did not see or, have any contact with D.J. from November of 2017 to
    March of 2018. Mother explained she lives over an hour from Chambersburg and it has been
    difficult to visit D.J. without a car. Id. at 56-57, 75_
    10
    communication. Id. at 70. Mother testified she did not have access to a phone for a
    month and. a half, but attempted to contact the Agency'eight or nine times since
    November of 2017. Id. Mother testified the Agency only returned her last two
    phone calls. Id. at 70, 87-89.
    ISSUES RAISED
    In the above -captioned Orphans' Court action, Mother alleges this Court'
    decision to terminate her parental rights was not supported by clear and convincing
    evidence, and therefore constituted an abuse of discretion for the following
    reasons: there was insufficient evidence to determine that (1) Mother failed, to
    perform parental duties for a period of at least: six months immediately preceding
    the filing of the Petition; (2) Mother caused the child to be without essential
    parental care, control, or subsistence necessary for his physical or mental well-
    being; (3) the conditions which led to placement of the child cannot or will not be
    remedied by Mother within a reasonable time; and (4) termination of Mother's
    parental rights is not in, the child's best interests.
    In the. above-captioned Juvenile Court action, Mother alleges this Court's
    decision to change the permanency goal from reunification to adoption was not
    supported by clear and convincing evidence, and was therefore an abuser of
    discretion for the, following reasons:: (1) there was insufficient evidence to
    determine that the child's best interests are met by a change of goal to adoption;
    11
    and (2) Mother could remedy the barriers to reunification if provided additional
    time and services.
    DISCUSSION
    I. Termination of Parental Rights
    The standard of review in a termination of parental rights case is well
    established:
    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 we 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.
    In re S.H., 879. A2d 802, 805 (Pa. Super. 2005) (citation omitted).
    The petitioner has the burden to prove by clear and convincing evidence that
    the asserted grounds for seeking termination are valid in a termination of parental
    rights case. In re A.S.,   
    11 A.3d 473
    , 477 (Pa. Super. 2010) (citation omitted). Our
    appellate courts have stated the following:
    The standard of clear and convincing evidence is defined as testirnony
    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. The trial court is free to believe all, part, or
    none of the evidence presented and is likewise free to make all
    credibility determinations and resolve: conflicts in the evidence. If
    12
    Th
    competent evidence supports the trial court's findings, we will affirm
    even if the record could also support the opposite result.
    
    Id.
     (citations omitted).
    Additionally, parental rights are not absolute: "[a] parent's basic
    constitutional right to the custody and rearing of ... [his] children is converted,
    upon the failure to fulfill ... parental duties, to the
    children's right to have':proper
    parenting and fulfillment of [the child's] potential in a permanent, healthy,
    safe
    environment." Tare'A.S.,         
    11 A.3d at
    478: (citation omitted). Parental rights may be
    involuntarily terminated where any one subsection of 23 Pa.C.S.A. § 2511(a) is
    satisfied, along with consideration of 23 Pa.C.S.A.          §   2511(b) provisions. In re Z.P.,
    
    994 A.2d 1108
    , 1117 (Pa. Super. 2010) (citation 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." 
    Id.
     at   1   1_18   (citation omitted.
    In the instant case, this Court found grounds for termination existed under
    Sections '2'511(a)(2), (5), and (8). After engaging in the first part of the test, under
    Section 2511(a), this Court also found termination would serve the, best interests of
    DJ. pursuant to Section 2511(b). On appeal, Mother argues this Court's decision
    was not supported by clear and convincing evidence, therefore constituting an
    13
    "Th
    abuse of discretion. We disagree, and will address each ground for termination in
    turn.
    A.      Termination of Parental Rights Under Section 2511(a)(2)
    In order to terminate parental rights pursuant to Section 2511(a)(2), the
    following three elements must be established:
    (1.)repeated and continued incapacity, abuse, neglect or refusal; (2:)
    such incapacity, abuse, neglect or refusal has caused the child to be
    without essential parental care, control or subsistence necessary for
    his physical or mental well-being; and (3) the causes of the incapacity,
    abuse, neglect or refusal' cannot or will not be remedied.
    In re D.L.B., 
    166 A.3d 322
    , 327 (Pa. Super. 2017) (citation omitted); see also
    23 Pa.C.S.A. § 2511(0(2). Additionally; statutory grounds for termination      of
    parental rights due to parental incapacity that cannot be remedied are, not, limited to
    affirmative misconduct; "[t]o the contrary, those grounds may include acts: of
    refusal as well as incapacity to perform parental duties." Id. (citation omitted).
    Here, the Agency established by clear and convincing evidence, that
    Mother's parental rights should be terminated pursuant to Section 2511(a)(2).
    Although Mother participated in some of the ordered services, Mother failed to
    complete all of the services. Mother completed the parental fitness assessment and
    followed through with some of the recommendations, but failed to follow through
    with and successfully complete outpatient therapy. Citing both work conflicts and
    her belief that she did not need therapy, Mother failed to attend session and was
    14
    unsuccessfully discharged. Mother also false1y suggested to the Agency that she
    had completed her therapy requirements. To date, Mother has not successfully
    completed her therapy requirements.
    Mother completed the drug and alcohol assessment and was not
    recommended to participate in any further treatment. However, she later failed a
    drug test and refused another, knowing her refusal would be considered a positive
    test by the Agency.
    With respect to financial and housing stability, Mother failed to make the
    necessary steps to secure permanent employment. This Court was provided with
    no plan for a safe home for D.J.
    Mother also failed to maintain consistent visitation and was discharged due
    to lack of attendance on December 5, 2017. Mother then failed to contact, the
    Agency until March 5, 2018, despite not having seen DJ. for several months. By
    failing to seriously address this Court's ordered services, Mother has failed to
    provide essential parental care necessary for D.J.'s physical and mental well-being.
    Furthermore our appellate courts, have stated:.
    Unlike. subsection (a)(1), subsection (a)(2) does not emphasize a
    parent's refusal or failure to perform parental duties, but, instead
    emphasizes the child's, present and future need for essential parental
    care, control or subsistence necessary for his physical or mental well-
    being. Therefore, the language in subsection (a)(2) should not be read
    to compel courts to ignore :a child's need for ,a stable home and strong,
    continuous parental ties, which the policy of restraint in state
    intervention is intended 'to protect. This is particularly so where
    15
    disruption of the family has already occurred and there is no
    reasonable prospect for reuniting it.
    In re. A.S.,   
    11 A.3d at
    478 (citing In re E.A.P., 
    944 A.2d 79
    , 82 (Pa. Super. 2008)).
    In light of this standard, we heavily considered D.J.'s present and future need
    for a
    stable home when we terminated Mother's parental rights. A
    parent must provide
    their child, with safe and stable. housing. While we recognize
    Mother was a victim
    of Mr.   L's           repeated physical and emotional abuse, Mother nonetheless failed
    to protect D.J. from Mr.      Ls         abuse. Mother didn't timely disclose the abuse,
    placing her child at risk and resulting in a delay of necessary services for 'DJ.
    Although Mother separated from Mr. 11111111 in September of 2017, Mother has
    made little progress in securing a safe and stable home for D.J.
    Stated differently, Mother's lack of significant progress over the past
    twenty-two months convinces the Court she has no interest or no ability to remedy
    the conditions which have kept her son out of care and custody. D.J.'s right to a.
    permanent and safe environment should not be on hold indefinitely. The law
    demands that ,a parent overcome obstacles in their path to meet their child's needs.
    Mother has not done so. Thus, this Court did not err in, terminating Mother's
    parental rights pursuant to Section 2511(0(2).
    B.      Termination of Parental Rights Under Sections 2511(a)(5), (8)
    Pursuant to Sections 2511(a)(5), (8), parental rights may be terminated
    when:
    16
    "Th
    (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 terrnination of parental rights would best serve
    the needs and welfare of the child.
    23.   Pa.C.S.A. §§ 2511(a)(5), (8); see also In re S.H., 
    879 A.2d 802
    , 807 (Pa. Super.
    2005) (noting the analysis under subsection (8) merely requires that the conditions
    leading to placement continue    to,   exist, whereas under subsection (5') the Court
    must consider a parent's willingness 'or ability to remedy such, conditions).
    Here, the Agency established by clear and convincing evidence that
    Mother's parental rights should be terminated pursuant to Sections 2511(a)(5), (8).
    As noted above, Mother's inability to meet D.J.'s basic need for ,a safe and secure
    home led to D.J.'s continued placement with the Agency for the past twenty-two.
    months. Despite Mother's participation 'in some of this Court's directives, the
    conditions which led to D.J.'s placement continue to exist and Mother is unwilling
    or unable to remedy the. conditions. To date, Mother has not successfully
    *17
    maintained visitation with D.J. or completed her therapy. Mother also has not
    secured full-time employment or a permanent residence.17
    Additionally, this Court strongly believes Mother: will not be able to remedy
    the conditions which led to D.J.'s placement. Twenty-two months was
    substantial
    time to address the situation. Furthermore, Section 2511(a)(5) requires
    the
    termination of parental rights be in the child's best interests. As discussed
    below,
    the tennination of Mother's parental rights 'is in the best interests of D.J.
    Thus, this Court did not err in terminating Mother's parental rights pursuant
    to Sections 2511(a)(5), (8).
    C.     Termination of Parental Rights Under Section 2511(b)
    If the Court finds the, grounds' for termination 'are satisfied pursuant to
    Section 2511(a), it must proceed to an evaluation oldie child's best interests under
    Section 2511(b). Section 2511(b) provides the following:
    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.
    17Mother did not present this Court with a plan or solution to address the financial and housing
    concerns at the TPR hearing.
    18
    23 Pa.C.S.A. §   2511(4 In considering, the needs and welfare of a child, the court
    must examine whether terminating the natural parent's rights would destroy
    something in existence that is necessary and beneficial. In re C.S., 
    761 A. 2d 1197
    ,
    1202 (Pa. Super. 2000).
    The evidence presented at the TPR hearing convinces this Court that
    termination of Mother's parental rights is in D.J.'s best interests. As discussed
    above, Mother failed to obtain and maintain financial and housing stability.
    Conversely, D.J.'s foster parents have provided D.J. with a safe and stable home.
    Mother also failed to maintain visitation and participate in filial therapy with D.J.
    Contrarily, D.J.'s foster mother actively participates in filial therapy in order to
    develop a. critically important bond with D.J. We are convinced D.J. has the
    necessary support from his foster parents to assist him through any' detriment as a
    result of our termination of Mother's parental rights.
    Furthermore, terminating Mother's parental rights would not destroy
    "something in existence that is necessary and beneficial." In re C.S., 761 A.2d at
    1202. It is possible that Mother and D.J. have a bond. However, this bond is not
    healthy for D.J. Mother's lack of engagement demonstrates she does, not
    acknowledge or understand what her son needs for healthy growth and
    development. As a result of D.J.'s placement and therapy, he is now mentally and.
    medically on track. This Court is convinced that the love, comfort, security, and
    19
    %,,
    stability D.J. has with his foster parents outweigh any existing emotional bond D.J.
    has developed with Mother.
    Thus, this. Court did not err in terminating, Mother's, parental
    rights pursuant
    to Section 2511(b).
    II. Goal Change from Reunification to Adoption
    The standard of review for a juvenile court's permanency
    determination is as
    follows:
    In cases involving a court's order' changing the [court -ordered]
    goal ...
    to adoption, our standard of review is abuse of discretion. To hold that
    the trial court abused its discretion, 'we must detennine its judgment
    was manifestly unreasonable, that the court disregarded the law, or
    that its action was a result of partiality, prejudice, bias or ill will.
    While this Court is bound by the facts determined in the trial court, vve
    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 Interest of L.T., 
    158 A.3d 1266
    , 1276 (Pa. Super. 2017) (citations omitted). In a
    change   of goal proceeding, the interests of the child supersede the interests of the
    parent. In re D.P., 
    972 A.2d 1221
    , 1227 (Pa. Super. 2009) (citations omitted). The
    burden is on the Agency to prove the change in goal would be in the best interests
    of the child.   
    Id.
     (citation omitted). A juvenile must consider the following factors
    regarding permanency planning:
    Pursuant to § 6351(f) of the Juvenile Act, when considering a petition
    for,,a goal change for a dependent child, the juvenile court is to
    20
    consider, inter alia: (I) the continuing necessity for and
    appropriateness of the placement; (2) the extent of compliance with
    the family service plan; (3) the extent of progress made towards
    alleviating the circumstances which necessitated the original
    placement; (4) the appropriateness and feasibility of the current
    placement goal for the children; (5) a likely date by which the goal
    for
    the child might be achieved; (6) the child's safety; and (7)
    whether the
    child has been in placement for at least fifteen of the last
    twenty-two
    months.
    In Interest of L.T., 158 A.3d at 1276-1277 (citations omitted).
    Last, a juvenile
    court must consider whether reasonable efforts were made
    to finalize the
    permanency plan in effect. Id. at 1277; see also 42 Pa.C.S.A.          §   6351(0(5.1).18
    Here, our changing of D.J.'s permanency goal from reunification to adoption
    was held simultaneously with the termination of Mother's parental rights.               The
    evidence presented at the TPR hearing establishes that our changing, of D.J.'s
    permanency goal from reunification to adoption is in D.J.'s best interests.
    Although Mother complied with some of the directives of this Court, her
    compliance was not sufficient or complete to overcome the Agency's request for
    termination and change of permanency goal from reunification to adoption.
    For the past twenty-two months, Mother failed to remedy the circumstances
    which mandated D.J.'s continued placement. Mother also failed to provide this
    Court with a plan to remedy the financial and housing concerns. It is clear to this
    Court that Mother will not remedy the conditions which led to D.J. continued
    18 This:COurt found the Agency made reasonable efforts to finalizethe..permanency plan in
    effect.
    .19
    Accordingly, this Court considered the same .eliidence...for both. matters.
    21
    placement even if provided more time because she, has, made no strides to
    complete
    her therapy, maintain consistent visitation, obtain employment, and
    secure safe
    housing. D.J. deserves permanency and his life should not be put
    on hold "in the
    hope that [Mother] will summon the ability to handle
    the responsibilities of
    parenting." In re N.C., 
    909 A.2d 818
    , 824 (Pa. Super. 2006)
    (citation omitted).
    Currently, these needs are being meet by D.J.'s foster parents.
    Thus, this Court' did not err by changing D.J.'s permanency goal from
    reunification to adoption because the change is necessary to achieve
    permanency.
    CONCLUSION
    In summary, grounds for' termination of Mother's parental rights were
    established by clear and convincing evidence under 23 Pa.C.S.A. §§
    2511(a)(2),(5), and (8). It is in D.J.'s best interests to terminate Mother's parental
    rights pursuant to 42 Pa.C.S.A.   §   2511(b). Furthermore, the evidence presented at
    the TPR hearing supported our changing of D.J.'s permanency goal from
    reunification to adoption. Accordingly, this Court respectfully requests the.
    Superior Court affirm the tennination of Mother's parental rights and our changing
    of D.J.'s permanency goal from reunification to adoption, and dismiss the instant
    appeals.
    22
    

Document Info

Docket Number: 670 MDA 2018

Filed Date: 12/3/2018

Precedential Status: Precedential

Modified Date: 4/17/2021