In re: J.M.P. Appeal of: C.P. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.M.P., JR., J.M.P., J.R.P., AND IN THE SUPERIOR COURT OF
J.P.R.P. PENNSYLVANIA
APPEAL OF C.P., MOTHER
No. 2502 EDA 2014
Appeal from the Order Entered July 24, 2014
In the Court of Common Pleas of Northampton County
Orphans’ Court at No.: C-0048-OC-2012-0003
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 10, 2015
C.P. (“Mother”) appeals the July 24, 2014 order that terminated her
parental rights to J.M.P., Jr. (born in July 2009), J.M.P. (born in July 2009),
J.R.P. (born in May 2010), and J.P.R.P. (born in January 2012) (collectively
“the Children”). We affirm.
The record supports the following summary of the factual history of
this case. Around February 2010, Mother, the Children,1 and J.P. (”Father”)
moved to Pennsylvania. After living with one of Father’s relatives, the family
moved into a motel. In May 2010, a referral was made to the Northampton
County Department of Children, Youth and Families (“Agency”) that Mother
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1
At that time, J.P.R.P. had not yet been born.
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was yelling at and slapping the Children. The Agency placed Mother and the
Children in a shelter.2 Father’s whereabouts were unknown at that time.3
While living in the shelter, Mother received services from the Valley
Youth House Family Preservation Program, but Mother was uncooperative
and unwilling to learn. Mother also was unwilling to participate fully in
intake, and she was discharged unsuccessfully. On July 23, 2010, Mother
was discharged from the shelter for failing to follow the rules. Mother had
left the Children unattended, had not maintained cleanliness, and had
problems with staff members.
On July 26, 2010, the Agency obtained custody of J.M.P., Jr., J.M.P.,
and J.R.P. through an Emergency Shelter Care order. On September 1,
2010, those three Children were adjudicated dependent. Mother and Father
were directed to attend parenting education, to have psychological
evaluations, and to maintain housing and a stable income. Mother also was
ordered to comply with any recommended psychological treatment, to
cooperate with in-home services, and to submit urine screens. Father was
required to undergo a sex offender evaluation.
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2
At the time that the family was moved into the shelter, another older
child, D. (born in May 2008), also was living with Mother. D. is not subject
to the proceedings at issue in this appeal.
3
On May 25, 2010, Father was arrested for an alleged violation of the
registration requirements of the Sex Offender Registration and Notification
Act, 42 Pa.C.S.A. §§ 9799.10, et seq.
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Initially, during supervised visits, Mother made accusations that the
Children were being physically and sexually abused in their foster
placements. However, she stopped making these accusations in early 2011.
Mother had her evaluation and began attending psychotherapy.
In April 2011, Father was acquitted of his charges and began to live
with Mother. In July 2011, Mother lost her job and was incarcerated
following a domestic dispute with Father. In September 2011, at a
permanency review, Father had not obtained his psychological evaluation.
Because Father was acquitted of violating sex offender reporting obligations,
the court removed the sex offender evaluation requirement. In December
2011, Mother’s visits were reduced because she would not provide an
address and she stopped attending therapy.
J.P.R.P. was born in January 2012. She was taken into Agency
custody the next day and was adjudicated dependent on January 31, 2012.
On January 26, 2012, the Agency filed petitions to terminate Mother’s and
Father’s parental rights to the three older Children. On April 23 and 24,
2014, the court held hearings on the petitions. At the end of the April 24,
hearing, the parties agreed to hold the petitions in abeyance to allow Mother
and Father another opportunity to comply with Agency requirements. The
parties agreed that Mother and Father would provide an address, that Father
would undergo a psychological evaluation and would provide a release for
information related to sex offender evaluations in Florida, and that Mother
would resume therapy and cooperate with Agency services.
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During the period in which the petitions were suspended, the parents
provided an address. However, Father did not attend his visits regularly
with the Children. Since April 2012, Father has had no further contact with
the Agency or with the trial court.
Mother did not attend therapy beyond the intake appointment. Mother
missed many of her visits as well; some were cancelled due to Mother
contracting cellulitis, some due to Mother’s incarceration from August 2012
until October 2012 for contempt of a domestic relations order, and some for
other reasons. Mother has not seen the Children since August 2012. On
December 27, 2012, Mother gave birth to another child who is not subject to
this termination proceeding. On January 17, 2013, the Agency filed a
petition to terminate Mother’s and Father’s parental rights to J.P.R.P.
The trial court held an additional hearing on the termination petitions
on February 14, 2013. At that hearing, Mother testified that she was living
in Allentown.
The trial court summarized the remaining procedural history as
follows:
On February 14, 2013, the last portion of the hearing on all the
dependencies was held and the prior proceedings were made
part of the record. All termination proceedings were attended by
Mother, counsel for Mother, counsel for Father, counsel for the
Agency, and the [C]hildren’s guardian ad litem. Father only
attended the first termination proceeding, at which he was not
called to testify.
On February 14, 2013, prior to the commencement of hearing,
the [trial court] heard and considered Mother’s petition to
terminate the dependencies, which it denied. Subsequently,
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both Mother and Father separately appealed the [trial court’s]
denial of Mother’s dismissal petition. The Superior Court ruled
on Mother’s appeal by an Order entered March 10, 2014; and it
ruled on Father’s appeal on April 14, 2014. In both cases, it
affirmed the trial court’s denial of the petition to dismiss the
dependencies. Mother also sought allocatur to the Supreme
Court of Pennsylvania, which was denied by an Order entered on
May 29, 2014. At that junction, [the trial court] was finally[]
able to consider the Agency’s petitions. . . .
Trial Court Opinion and Order (“T.C.O.”), 7/24/2014, at 2.
On July 24, 2014, the trial court terminated the parental rights of
Mother and Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and
(b). On August 13, 2014, Mother timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On August 19, 2014, the trial court filed a Rule
1925(a) statement and referred this Court to the reasoning set forth in its
July 24 opinion and order.
Mother raises two issues in her appeal:
1. Whether the trial court abused its discretion and committed
an error of law by terminating Mother’s parental rights when
such determination was not supported by clear and
convincing evidence under 23 Pa.C.S.A. § 2511(a)(1), (2),
(5) and (8)?
2. Whether the trial court [] abused its discretion by terminating
[Mother’s] rights where the trial court failed to acknowledge
and discern the nature of the parental child bond and failed to
determine whether termination would destroy the existing
relationship in violation of 23 Pa.C.S.A. § 2511(b)[?]
Mother’s Brief at 4.
Our standard of review is as follows:
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In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court’s findings are supported by competent
evidence of record, we must affirm the hearing court even
though the record could support an opposite result.
We are bound by the findings of the trial court which have
adequate support in the record so long as the findings do not
evidence capricious disregard for competent and credible
evidence. 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.
Though we are not bound by the trial court’s inferences and
deductions, we may reject its conclusions only if they involve
errors of law or are clearly unreasonable in light of the trial
court’s sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
It is well-settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by clear and convincing
evidence, which requires evidence 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.” In re T.F., 847
A.2d 738, 742 (Pa. Super. 2004).
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The trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. § 2511 which states, in pertinent part, 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:
(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.
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* * *
(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.
The trial court found grounds to terminate Mother’s parental rights
pursuant to sections 2511(a)(1), (2), (5), (8), and (b). However, this Court
only needs to agree with the trial court’s conclusions with regard to one
subsection of 23 Pa.C.S.A. § 2511(a), in addition to section 2511(b), in
order to affirm the termination of parental rights. See In re B.L.W., 843
A.2d 380, 384 (Pa. Super. 2004) (en banc). Termination is a two-step
process, in which a trial court first must determine if the grounds under
subsection (a) are met, and then it must consider subsection (b). See In re
Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc). The
focus in terminating parental rights under section 2511(a) is upon the
parent, while section 2511(b) focuses upon the child. Id. at 1008.
Because we need only agree with one subsection of 2511(a), we
proceed to analyze subsection (a)(2). To satisfy the requirements of
subsection 2511(a)(2), the moving party must produce clear and convincing
evidence regarding the following elements: (1) repeated and continued
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incapacity, abuse, neglect, or refusal; (2) such incapacity, abuse, neglect, or
refusal 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. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.
Super. 2003). The grounds for termination of parental rights under
subsection 2511(a)(2), parental incapacity that cannot be remedied, are not
limited to affirmative misconduct. Grounds pursuant to this subsection may
include refusal, as well as incapacity, to perform parental duties. In re
A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).
Mother argues that she remedied the issues that led to the Children’s
dependency. Mother contends that she was able to obtain housing and a
stable income. Mother states that she attended parenting classes. Further,
Mother argues that she fulfilled the counseling requirement until she “did not
feel that such therapy was beneficial to the return of her children.” Mother
asserts that she made “significant progress” on her goals. Mother’s Brief at
11-14.
The trial court relied upon Mother’s failure to see the Children since
2012 as the principal fact to support its findings that Mother refused to
parent the Children and was unwilling to remedy that situation. See T.C.O.
at 15.
There were concerns about Mother’s parenting skills while she was at
the shelter. Notes of Testimony (“N.T.”), 4/23/2012, at 27. Mother declined
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to receive parenting services from the Visiting Nurse Association, which led,
in part, to Mother’s dismissal from the shelter. Id. at 34. Mother also was
uncooperative with the services and staff at the shelter. Id. at 34-35.
Mother refused to consider the suggestions and advice from the people
trying to provide parenting education. Id. at 57.
Kelly Warnke, a former caseworker, testified that Mother complied with
the psychological evaluation, but her participation in subsequent therapy
was sporadic. Id. at 86. Ms. Warnke testified that Mother made progress
on her goals until Father was released from jail. At that point, Mother
became less compliant. Id. at 88. Shortly thereafter, Mother was jailed
because of a domestic violence incident with Father. Id. at 89. Mother
handled the Children roughly during visits. Id. at 95. Mother was not
responsive to suggestions to change her treatment of the Children. Id. at
96.
From March to October 2011, Mother attended only eighteen of thirty
scheduled therapy appointments. Id. at 122-23. Mother’s therapist
testified that, although Mother initially made progress, she experienced more
difficulty with anger and coping as time passed. Mother then became less
cooperative and more defensive. Id. at 125-27, 140. The therapist
concluded that “there wasn’t a whole lot of progress made.” Id. at 128.
Mother was discharged from therapy for failing to attend sessions. Id. at
131.
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Helen Willis, a parenting instructor, also testified that Mother initially
made progress, but then seemed to forget what she had learned. Id. at
148. The parenting instruction was terminated because Mother missed three
consecutive visits and her location was unknown. Id. at 151. However, Ms.
Willis found that Mother was affectionate with the Children during visits, that
the Children were affectionate with Mother, and that there was a bond
between Mother and the Children. Id. at 153, 157. Marie Apgar, an Agency
case aide who supervised visits, also testified that the Children were
affectionate with Mother, giving her hugs and kisses, and that they called
her “Mom.” N.T., 4/24/2012, at 204.
Mother admitted that she was discharged unsuccessfully from mental
health treatment and that she did not return to treatment. N.T., 2/14/2013,
at 34. However, Mother maintained that treatment only was required to
help her cope with the Children being removed from her care and that there
was no other need for treatment. Id. at 34-35.
Moriah Harms, an Agency caseworker, testified that, in April 2012, the
Agency offered and arranged for Mother to visit with the Children in the
community or at the Agency while in-home services completed its intake
process and home visits could begin. Id. at 55-56. However, Mother
refused to participate in those visits because they were not in her home. Id.
at 56. Ms. Harms also testified that Mother had not provided any evidence,
such as a lease or utility bills, to prove where she was living. Id. at 83-84.
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Ms. Harms affirmed that Mother had not complied with the counseling
requirements in the Children’s permanency plan. Id. at 86-87.
The record demonstrates that there were concerns with Mother’s
ability to care for the Children, particularly Mother’s parenting skills, housing
and income, and mental health issues. Despite initial progress, the record
supports the conclusion that the concerns continued and caused the Children
to be without Mother’s parental care. Mother has failed to remedy those
concerns. Our review of the record supports the finding that the Agency
proved by clear and convincing evidence that termination was warranted
pursuant to subsection (a)(2), and that the trial court did not abuse its
discretion in so finding.
We next review the trial court’s conclusion that subsection 2511(b)
was met. The Adoption Act provides that a trial court “shall give primary
consideration to the developmental, physical and emotional needs and
welfare of the child.” 23 Pa.C.S.A. § 2511(b). As part of this determination,
our case law requires the evaluation of any parent-child bond. In re:
T.S.M., 71 A.3d 251, 267 (Pa. 2013). However, this Court has held that
the trial court is not required to order a formal bonding evaluation performed
by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
The trial court analyzed the Children’s best interest in a conclusory
fashion. The trial court correctly sets forth the legal standard of subsection
(b). T.C.O. at 12-13. The trial court made a finding of fact that the Children
are thriving and their needs are met in their foster homes. T.C.O. at 10.
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The closest that the trial court came to discussing subsection (b) is in its
conclusions of law, in which, pursuant to subsections 2511(a)(5) and (8) and
the goal change, it concluded that the termination is in the Children’s best
interests. Id. at 17.
As noted above, once the trial court determines that the parent’s
conduct satisfies the requirements for termination pursuant to subsection
2511(a), it must then turn its focus to the child’s best interest, which is a
distinct analysis. In re I.G., 939 A.2d 950, 955-56 (Pa. Super. 2007). The
court must consider the bond between the parent and child, and if it finds a
bond, must consider the effect on the child of severing that bond. Id. at
956. “[O]ffer[ing] only a cursory conclusion without supporting evidence on
the bond between [the child] and Mother . . . will not suffice.” In re C.P.,
901 A.2d 516, 522 (Pa. Super. 2006).
The trial court has not adequately discussed the Children’s best
interests in its opinion. Further, there was evidence of a bond between
Mother and the Children. Ms. Willis testified that Mother and the Children
were affectionate with each other and that there was a bond between
Mother and the Children, and Ms. Apgar testified that the Children called
Mother “Mom.” Therefore, the court not only had to consider the bond, but
also the effect of severing that bond. The trial court offered no analysis in
its opinion, and, instead, offered only conclusory statements.
However, in this case, the record provides sufficient evidence to
support the trial court’s conclusion that termination was in the Children’s
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best interest, which was not the case in I.G. and C.P. In I.G., the evidence
suggested a bond between the father and the children. I.G., 939 A.2d at
956. However, there was no record evidence regarding how termination
would affect the children. The trial court recognized that deficiency, but
relied solely upon the fact that the children had not seen their father in a
year. Id. at 957. This Court remanded the case to allow the parties to
present evidence concerning the bond between the father and the children,
stating that the trial court’s “conclusion that termination would have no
effect on the children, without evidence of such, cannot stand.” Id. at 957
(emphasis added).
Similarly, in C.P., the record was “devoid of any evidence concerning
the effect that termination would have on [the child].” C.P., 901 A.2d at
522. Furthermore, the trial court provided no analysis of the child’s best
interests or of the impact of termination upon the child. “Without competent
evidence of record to support the trial court’s decision to terminate [the
mother’s] parental rights,” this Court remanded the case for further
development of the record. Id. at 523 (emphasis added).
Here, however, the trial court received competent record testimony
addressing the Children’s bond with Mother, the Children’s best interest, and
the effect of termination upon the Children. Ms. Harms testified that the
Children did not speak about Mother or Father. N.T., 2/14/2013, at 60. She
opined that the Children would not be harmed by termination of Mother’s
parental rights because Mother had not had consistent visits nor seen the
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Children since the summer of 2012. The Children did not express an interest
in seeing Mother. The Children were doing well in foster care and were
happy and well-adjusted. Id. at 62. Ms. Harms further opined that
termination was in the Children’s best interests because Mother had not
addressed the Agency’s concerns. Id. at 88-89, 91.
“It is a serious matter for the long arm of the state to reach into a
home and snatch a child from its [parent]. It is a power which a
government dedicated to freedom for the individual should exercise with
extreme care. . . .” I.G., 939 A.2d 958 (quoting In re Rinker, 117 A.2d
780, 783 (Pa. Super. 1950)). Here, the trial court should have exercised
more care in its analysis and should have provided a more thorough
discussion of subsection (b). However, because our independent review
demonstrates that sufficient evidence supported the trial court’s conclusion
that termination was in the Children’s best interests, we need not remand
this case as we did in I.G. and C.P. These Children, who have been
dependent since 2010 and 2012, respectively, deserve permanency.
Remand would frustrate this goal.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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