In Re: Adoption of C.L., minor, Appeal of: K.G. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN RE: ADOPTION OF: C.L., C.L., : IN THE SUPERIOR COURT OF
MINOR CHILDREN : PENNSYLVANIA
:
:
:
APPEAL OF: K.G., MOTHER : No. 746 WDA 2015
Appeal from the Order April 15, 2015,
Court of Common Pleas, Washington County,
Orphans’ Court at No(s): 63-13-1516
and 63-13-1517
IN RE: ADOPTION OF: C.L., C.L., : IN THE SUPERIOR COURT OF
MINOR CHILDREN : PENNSYLVANIA
:
:
:
APPEAL OF: K.G., MOTHER : No. 747 WDA 2015
Appeal from the Order entered April 15, 2015,
Court of Common Pleas, Washington County,
Orphans’ Court at No(s): 63-13-1517
and 63-13-1516
BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 24, 2015
Appellant, K.G. (“Mother”), appeals from the order of the trial court
terminating her parental rights to her two children, C.L. (born June 12,
2010) and Ch.L. (born September 14, 2011) (together, the “Children”). For
the reasons that follow, we affirm the trial court’s order granting the petition
to terminate parental rights filed by the Washington County Children and
Youth Services Agency (“CYS”).
*Former Justice specially assigned to the Superior Court.
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In its written opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, the trial court set forth the following facts
relevant to Mother’s appeal:
The Mother is 27 years old. (T.T. 11/13/14, P. 5)
She has no birth certificate. She was not born in a
hospital; her mother reported that she gave birth to
Mother in a car somewhere between Arizona and
Florida. (T.T. 11/5/14, P. 65) Because she has no
birth certificate, the Mother has been unable to
obtain a social security number. (T.T. 11/13/14, P.
8) She grew up in Lakeland, Florida and attended
school through the eighth grade, but was not
permitted to attend high school due to a lack of a
birth certificate. (T.T. 11/13/14, P. 7-8)
* * *
CYS first became involved with the family on
September 14, 2011, at the birth of Ch.L. The
hospital staff reported concerns to CYS that Mother
lacked any identification and that Father was very
controlling of Mother, answering questions for her.
(T.T. 8/6/14, P. 95) At the time, the Mother, Father,
the two children and the Father’s wife were all living
together. (T.T. 11/5/14, P. 29) In early 2012, after
an argument between Mother and Father’s wife
Christina, the Mother and [Children] moved to a
women’s shelter in Allegheny County. (T.T.
11/13/14, P. 30-32) After a few months, they left
and returned to the home of the Father. In October
of 2012, CYS located the family and went to the
residence. CYS found that the home was in a
deplorable and filthy condition and was inadequate
for the seven adults and two children living there.
(T.T. 8/6/14, P. 99) The Children were removed by
emergency shelter order and placed in foster care on
October 16, 2012, where they have remained. (T.T.
8/6/14, P. 100)
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The Children were adjudicated dependent on
December 3, 2012. The allegations of dependency
were deplorable living conditions, the Father’s status
as a Megan’s Law offender and his serious mental
health issues and the lack of verifiable identity of
Mother. (Exhibit 6; Dep. Pet. P. 5 of 5) Over the
course of the dependency case, the parents have
been ordered to obtain and maintain appropriate
housing, to complete a parenting educational
training and to obtain a mental health evaluation and
follow through with any treatment.
* * *
The parents have moved at least four times in the
last two years. They lived in a trailer in Canton
Township, then moved to Washington, then to West
Alexander and in January of 2014 to Eighty-Four,
Pennsylvania, where they have remained. (T.T.
8/6/14, P. 118) Their current housing was found
with the assistance of CYS and is appropriate,
although some issues of cleanliness have arisen.
(T.T. 8/6/14, P. 170) The parents completed the
parenting program through Justice Works. (T.T.
8/6/14, P. 105) The Mother has not obtained a
mental health evaluation because she lacked
identification. (T.T. 8/6/14, P. 105) However, as
part of an interactional evaluation that was
performed by Dr. Neil Rosenblum, a clinical
psychologist, a mental health assessment and
testing was conducted. Mother was diagnosed with
panic disorder with agoraphobia (Axis I), R/O Social
Anxiety Disorder (Axis I) and Mild Mental Retardation
(Axis II) with an IQ of 60 and a very limited reading
ability. (Exhibit 2)
* * *
The parents have weekly supervised visitation for
five hours. (T.T. 8/6/14, P. 123)
* * *
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Dr. Rosenblum conducted an interactional evaluation
with the parents and the Children and the foster
parents and the Children. He supported the
termination of the parents’ rights. (T.T. 8/6/14, P.
44) The CYS caseworker testified that, in her
opinion, the Children would not suffer any
detrimental effects if the parents’ rights were
terminated. (T.T. 8/6/14, P. 129-30) The Guardian
Ad Litem also supported the termination of the
parents’ rights. (T.T. 11/13/14, P. 69)
Trial Court Opinion, 6/12/2015, at 1-5.
CYS filed a petition to terminate Mother’s parental rights on December
24, 2013. The trial court conducted evidentiary hearings on August 6, 2014,
November 5, 2014, November 5, 2014, and November 13, 2014. On April
15, 2015, the trial court issued an order granting CYS’s petition and
terminating Mother’s parental rights. On appeal, Mother raises the following
two issues for our review and determination:
1. Whether the [trial court] erred as a matter of law by
terminating Mother’s parental rights since Mother
could not secure stable housing , seek employment,
apply for state benefits, since she has attempted by
is unable to obtain a birth certificate, social security
number, or state-issued identification card, which
prevented mother from completing court-ordered
services rendering her unable to rectify the
conditions which led to [Children] being without
essential parental care, control or subsistence
necessary to take care of [Children].
2. Whether the trial court erred as a matter of law since
Mother’s rights were terminated pursuant to §
2511(b), since Mother’s rights were terminat[ed] on
the basis of environmental factors such as
inadequate housing, furnishings, clothing, and
medical care that were beyond the control of Mother.
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Mother’s Brief at 5.
We review the appeal from the termination of parental rights in
accordance with the following standard.
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s
determination of a petition for termination of
parental rights. As in dependency cases, our
standard of review requires an appellate court 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. As
has been often stated, an abuse of discretion does
not result merely because the reviewing court might
have reached a different conclusion. Instead, a
decision may be reversed for an abuse of discretion
only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-
will.
As [the Pennsylvania Supreme Court] discussed in
[In re: R.J.T., 9 A.3d 1179 (Pa. 2010)], there are
clear reasons for applying an abuse of discretion
standard of review in these cases. [The Supreme
Court] observed that, unlike trial courts, appellate
courts are not equipped to make the fact-specific
determinations on a cold record, where the trial
judges are observing the parties during the relevant
hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore,
even where the facts could support an opposite
result, as is often the case in dependency and
termination cases, an appellate court must resist the
urge to second guess the trial court and impose its
own credibility determinations and judgment;
instead we must defer to the trial judges so long as
the factual findings are supported by the record and
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the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal
citations omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained [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)).
When deciding a case falling under section 2511, the trial court must
engage in a bifurcated process. In that analysis,
[t]he initial 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 at least one of the nine statutory grounds in
section 2511(a). If the trial court determines that
the parent’s conduct warrants termination under
section 2511(a), then it must engage in an analysis
of the best interests of the child under section
2511(b), taking into primary consideration the
developmental, physical, and emotional needs of the
child.
In re B.C., 36 A.3d 601, 606 (Pa. Super. 2012).
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This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, the trial court terminated Mother’s parental rights under
section 2511(a)(1), (2), (5), (8) and (b). We will analyze the trial court’s
decision to terminate Mother’s parental rights under section 2511(a)(1) and
(b).
These sections provide:
§ 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.
...
(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
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subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the
conditions described therein which are first initiated
subsequent to the giving of notice of the filing of the
petition.
23 Pa.C.S.A. § 2511(a)-(b).
Section 2511(a)(1) provides that a parent's rights may be terminated
if, inter alia, the parent has failed to perform parental duties for at least six
months immediately preceding the filing of the petition. 23 Pa.C.S.A. §
2511(a)(1). Although this section references the six months immediately
preceding the filing of the petition as most critical to the analysis, this Court
has held that “the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.” In re E.M.,
908 A.2d 297, 303 (Pa. Super. 2006) (quoting In re B., N.M., 856 A.2d
847, 855 (Pa. Super. 2004)). The trial court in this case indicated that it
evaluated the Mother’s conduct not only during the six months prior to the
filing of the petition (June 2013 through December 2013), but also “took a
broader approach and considered all of the conduct of the parties until the
hearing date.” Trial Court Opinion, 6/12/2015, at 8.
Our Supreme Court has stated that 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
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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..
In re J.T., 983 A.2d 771, 777 (Pa. Super. 2009) (quoting In re Burns, 474
615, 379 A.2d 535, 540 (Pa. 1977)).
For her first issue on appeal, Mother contends that CYS introduced
“absolutely no evidence” of any failure to perform her parental duties, as she
completed the parenting course and attended all of the supervised
visitations. Mother’s Brief at 10-11. We must disagree, as the trial court
reached the following determinations relevant to this inquiry:
Mother has taken very few steps to show that she
desires to parent her children. While she states that
she has applied for a social security number over
fifty times, she has taken no real action to do so.
CYS assisted Mother in obtaining DNA from Mother
and her mother, to verify who she was. The
[M]other then obtained an affidavit from her mother
which stated the general circumstances of her birth
but the Mother reported no further efforts to obtain a
birth certificate. The impediment to obtaining a birth
certificate, it seems to the court, is that the Mother
does not know where she was born. A deposition or
other testimony of the Mother’s mother could clarify
that issue so that the jurisdiction where legal action
should be taken could be established. But the
[M]other and her attorney have not taken that
action. The Mother’s limited intellectual functioning,
panic disorder and lack of identity make Mother
dependent on Father and the victim of manipulation.
She has evidenced no ability to independently take
care of herself, and certainly not the ability to take
care for two small children. Neither parent has any
community support.
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Trial Court Opinion, 6/12/2015, at 9-10. The certified record on appeal
amply supports these factual findings.
Once the evidence establishes a failure to perform parental duties, the
trial court must engage in an inquiry regarding the parent's explanation for
his or her conduct. In re Adoption of Charles E.D.M., 550 Pa. 595, 708
A.2d 88, 92 (1998). Here, Mother argues that the principal reason for her
inability to provide a suitable home and financial support for Children is her
lack of a birth certificate, which she in turn blames CYS for not providing
more assistance to her in this regard:
CYS did not utilize reasonable efforts to assist
[M]other in locating stable housing or assist her in
obtaining the necessary legal documentation to
confer citizenship and access to public welfare
benefits. If CYS would have assisted [M]other,
[M]other could have at least been able to obtain
housing so she could reside with her [C]hildren.
Instead, CYS did absolutely nothing to help [M]other.
They recommended various services knowing that
[M]other could never complete them and waited for
the termination of parental rights timeframe 15 of
the past 22 months in order to terminate [M]other’s
rights.
Mother’s Brief at 10-11.
Mother has cited to no authority in support of this argument, however,
and we are not aware of any such authority. Section 6351 of the Juvenile
Act requires an agency to provide reasonable efforts aimed at reunifying the
parent with his or her children. 42 Pa.C.S.A. § 6351. The trial court
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concluded that CYS has provided reasonable services to Mother, including
helping her to obtain housing as well as a sample of her DNA to assist in the
process of obtaining a birth certificate. Trial Court Opinion, 6/12/2015, at 3,
9-10. We are not aware of any authority that requires CYS, pursuant to
section 6351, to do more, including any obligation to provide additional
affirmative assistance (rather than to recommend actions she could take) to
obtain a birth certificate for her. To the contrary, our Supreme Court
recently ruled that agencies like CYS have no obligation to provide services
pursuant to section 6351 aimed at reunifying parents with their children
prior to petitioning for termination of parental rights. In re D.C.D., 105
A.3d 662, 671 (Pa. 2014).
For her second issue on appeal, Mother claims that the trial court’s
determination that CYS satisfied the requirements of section 2511(b) was in
error, since it was based upon environmental factors beyond her control.
Mother’s Brief at 14. Mother insists that there is a strong bond between
herself and Children, and that the trial court wants to sever that bond based
upon her inability to provide adequate housing, furnishings, income, clothing
and medical care, which (given her lack of access to welfare benefits) is
beyond her control at the moment. Id.Reviewing the certified record on appeal, however, we must disagree,
as CYS presented clear and convincing evidence in connection with section
2511(b) that was wholly unrelated to any consideration of environmental
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factors. Azure Hixenbaugh, the CYS caseworker, testified that based upon
her observations, there was no bond between the Children and their parents
(including Mother) that was of benefit to the Children. N.T., 8/6/2014, at
130. Dr. Neil Rosenblum testified that while he believed that Mother loved
the Children dearly, id. at 57, he saw no similar loving relationship between
the Children and their parents. Id. at 46-47. Instead, Dr. Rosenblum
described the Children as “comfortable” with their parents, with the older
child (C.L.) exhibiting more of an attachment than Ch.L. Id. at 46. Both
Ms. Hixenbaugh and Dr. Rosenblum agreed that severing the relationship
between the Children and Mother would not result in any detrimental effect
to the Children. Id. at 47-48, 130. According to Dr. Rosenblum, the
Children have adapted to life with their pre-adoptive foster parents, from
whom they derive all of their “nurturing, direction and emotional support,”
and that as a result termination was not “something that would cause the
children any significant adjustment concerns.” Id. at 47-48. Both Ms.
Hixenbaugh and Dr. Rosenblum also agreed that the Children have strong
bonds with their pre-adoptive foster parents and that termination of parental
rights and adoption were in the Children’s best interests. Id. at 44, 130;
see In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (“Common sense dictates
that courts considering termination must also consider whether the children
are in a pre-adoptive home and whether they have a bond with their foster
parents.”).
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The trial court unquestionably found the testimony of Ms. Hixenbaugh
and Dr. Rosenblum to be credible, and this Court is bound by those
credibility determinations. In the Interests of J.F.M., 71 A.3d 989, 992
(Pa. Super. 2013). Because the trial court’s analysis of section 2511(b) was
not reliant upon environmental factors beyond the ability of Mother to
provide, we find no error. Mother’s second issue on appeal thus lacks any
merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
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