In the Interest of: M.L.S. Appeal of: S.S. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.L.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: S.S., MOTHER, :
: No. 2516 EDA 2014
Appellant :
Appeal from the Order Entered July 28, 2014,
in the Court of Common Pleas of Philadelphia County
Juvenile Division at Nos. CP-51-AP-0000340-2014,
CP-51-DP-0002222-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 27, 2015
S.S. (“Mother”) appeals from the order entered on July 28, 2014,1
granting the petition filed by the Department of Human Services of
Philadelphia County (“DHS”) to involuntary terminate her parental rights to
M.L.S. (“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b). We affirm.
In May 2012, Child was born prematurely, at 25 weeks’ gestation, at
the Children’s Hospital of Philadelphia (“CHOP”). (Notes of testimony,
7/28/14 at 13.) Child suffered from numerous medical problems as a result
of her premature birth; namely, chronic lung disease; stage three
inter-ventricular hemorrhaging and reflux; a need for oxygen support; and a
1
The trial court also terminated the parental rights of K.Y., father, who did
not file an appeal.
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gastrointestinal tube (“G-tube”) for feeding. (See Exhibit 1, General
Protective Services (“GPS”) report, dated 11/16/12 at 1.) Child remained at
CHOP following her birth and was scheduled for discharge on November 20,
2012. (Id.) Prior to Child’s discharge, Mother was required to do two
24-hour stays at CHOP to show that she was equipped to manage Child’s
medical care. (Id.)
During the first 24-hour stay, Mother slept through several alarms,
including one for Child’s oxygen tube. CHOP doctors and staff informed
Mother that her behavior would need to be corrected before her next stay.
(Id.) During Mother’s second stay on November 15, 2012, she slept for 30
minutes through an alarm for Child’s oxygen tube. As a result, the oxygen
tube became clogged. (Id.) The GPS report also noted that during other
visits with Child, a nurse had to wake Mother so she could care for Child.
(Id.)
Because CHOP doctors and staff were concerned that Mother would
sleep through alarms once Child was discharged from the hospital, DHS was
notified and the GPS report was forwarded on November 16, 2012. Child’s
doctor wanted to meet with DHS to establish a discharge plan because Child
was at high risk for readmission to CHOP if she were to leave the hospital.
The report alleged that Mother was not prepared to care for Child in her
home given that Child had special needs and required medication; there
were concerns regarding Mother’s mental health; Mother’s insurance would
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not cover adequate nursing support for her and Child; Mother did not have
any baby items for Child or a suitable space for Child to sleep in her home;
and Mother lacked other support to help her with Child and her other child
who has a seizure disorder. (Id. at 1-2.)
According to the trial court, on November 28, 2012, DHS evaluated
Mother’s home and determined that Mother did not have the ability to give
Child a suitable place to sleep or stay. (See trial court opinion, 10/8/14 at
2.) An order for protective custody was granted on December 13, 2012;
Child left CHOP and entered foster care where she has remained in care
continuously.
On January 9, 2013, the trial court determined Child was a dependent
child and Child was committed to DHS’s custody. A family service plan was
developed and Mother’s objectives were: to visit with Child; attend Child’s
medical appointments; attend parenting classes; and obtain mental health
treatment and suitable housing. Drug treatment was also added as a Family
Service Plan (“FSP”) goal after Mother admitted she had been “doing drugs.”
Mother failed to complete any of her FSP goals. (Notes of testimony,
7/28/14 at 15-17.)
The trial court discussed the FSP goals and Mother’s visits with Child
as follows:
Mother did not achieve all of her FSP objectives
through the life of [the] case (N.T. 7/28/14, pgs. 15-
16, 39). Mother was aware of her FSP objectives
(N.T. 7/28/14, pg. 15). FSP meetings have been
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held at regular intervals throughout the life of the
case (N.T. 7/28/14, pg. 16). All the services were
offered to help Mother reunify with her Child (N.T.
7/28/14, pgs. 31-33, 35-36). The record establishes
that DHS provided and offered reasonable and
adequate services to remedy the conditions that
brought the Child into care. At one point, Mother
was granted unsupervised visits with Child but
Mother’s visits were subsequently changed to
supervised because of concerns about her care with
Child during the visits (N.T. 7/28/14, pgs. 18-19).
In particular[], it was unclear whether the Child was
being fed during unsupervised visits with Mother, the
Child would come back smelling of smoke, Child’s
G-tube was irritated and would not be flushed, the
pulse oximeter was not being used and the oxygen
machine was not connected (N.T. 7/28/14, pgs.
18-19). During Mother’s unsupervised visits at the
agency, when people walked by, Mother would be
sleeping and Child would be asleep with the oxygen
machine off (N.T. 7/28/14, pg. 19). Mother’s visits
were changed to supervised at the Permanency
Review hearing on March 5, 2014. Thereafter,
Mother never reached the point in which she could
obtain unsupervised visitation and she was not
consistent with her visitations (N.T. 7/28/14, pgs.
19-20). Additionally, Mother never obtained
employment and adequate housing (N.T. 7/28/14,
pgs. 28, 30). Mother has admitted that she has
refused or failed to perform parental duties and that
she is not able to provide for her child’s appropriate
care (N.T. 7/28/14, pgs. 39-40).
Trial court opinion, 10/8/14 at 4.
On June 30, 2014, Mother’s goal was changed to adoption. On
July 10, 2014, DHS filed a petition to terminate Mother’s parental rights; and
a hearing was held on July 28, 2014. At the end of the hearing, the trial
court ordered Mother’s parental rights terminated under Section 2511(a)(1),
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(2), (5), (8), and (b). This timely appeal followed. Mother raises the
following issues:
1. Did the trial court commit an error of law and
abuse of discretion by involuntarily terminating
[Mother’s] parental rights where DHS failed to
prove by clear and convincing evidence that
involuntar[ily] terminating [Mother’s] parental
rights would best serve the emotional needs
and welfare of [Child]?
2. Did the trial court commit an error of law and
abuse of discretion by involuntarily terminating
Mother’s parental rights without fully
considering the impact of termination on the
emotional needs and welfare of [Child]?
Mother’s brief at 3.
We review a decree terminating parental rights in accordance with the
following standard:
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 R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009), quoting In re S.H., 879
A.2d 802, 805 (Pa.Super. 2005), appeal denied, 892 A.2d 824 (Pa. 2005).
The burden is upon the petitioner to prove by clear and convincing evidence
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that its asserted grounds for seeking the termination of parental rights are
valid. Id. 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). 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. In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004). If
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result. In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003). This court may affirm the trial
court’s termination of parental rights with regard to any one subsection of
Section 2511. See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
In In re C.L.G., 956 A.2d 999 (Pa.Super. 2008) (en banc), this court
instructed as follows:
[O]ur case law has made clear that under Section
2511, the court must engage in a bifurcated process
prior to terminating parental rights. 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 after
determining that the parent’s conduct warrants
termination of his or her parental rights must the
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court engage in the second part of the analysis:
determination of the needs and welfare of the child
under the standard of best interests of the child.
Although a needs and welfare analysis is mandated
by the statute, it is distinct from and not relevant to
a determination of whether the parent’s conduct
justifies termination of parental rights under the
statute. One major aspect of the needs and welfare
analysis concerns the nature and status of the
emotional bond between parent and child.
Id. at 1004 (citations omitted).
Mother does not challenge the sufficiency of the evidence with regard
to Section 2511(a) to support the termination of her parental rights, only
Section 2511(b). Thus, in reviewing the present appeal, as Mother has
waived any challenge to the sufficiency of the evidence to support the
termination under Section 2511(a), we focus on Section 2511(b), which
provides, in relevant part, as follows.
§ 2511. Grounds for involuntary termination
....
(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.
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23 Pa.C.S.A. § 2511(b).
In reviewing the evidence in support of termination under
Section 2511(b), we consider whether the termination of parental rights
would best serve the developmental, physical, and emotional needs and
welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286-1287
(Pa.Super. 2005), appeal denied, 897 A.2d 1183 (Pa. 2006). “Intangibles
such as love, comfort, security, and stability are involved in the inquiry into
the needs and welfare of the child.” Id. at 1287 (citation omitted). The
court must also discern the nature and status of the parent-child bond, with
utmost attention to the effect on the child from permanently severing that
bond. Id.
Mother argues that DHS failed to prove that termination of her
parental rights best served Child’s needs and welfare. To that end, she
contends the effect of terminating the parent/child bond must be considered
separately from the parent’s capacity to care for the child. Mother maintains
that DHS’s evidence consisted primarily of her failure to meet her FSP goals.
(Mother’s brief at 12.)
In this case, Mother’s FSP goals were established to help her reunify
with her child who has special needs and requires medication as well as
constant supervision. By failing to accomplish any of her goals, Mother has
shown she is unable to provide for Child’s needs and welfare. The record is
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replete with instances of Mother’s failure or inability to properly attend to
Child’s medical conditions.
Additionally, Mother’s own testimony is certainly not helpful to her
case. Mother elected to appear by telephone during the termination hearing.
Mother was asked:
[Mother’s counsel]: Do you feel that you are, at this
point, able to provide [Child] with appropriate care?
Mother: No.
[Mother’s counsel]: You do not feel that you can
provide her with appropriate care right now?
Mother: No.
[Mother’s counsel]: Are you asking that she be
returned to you?
Mother: No.
Notes of testimony, 7/28/14 at 39-40.
This court has held that a child’s life, happiness, and vitality cannot be
put on hold until a parent finds it convenient to perform parental duties. In
the Matter of the Adoption of A.M.B., 812 A.2d 659, 675 (Pa.Super.
2002). It is clear the record supports the trial court’s conclusions that
Mother is unable to properly care for Child, thus putting Child’s welfare at
risk. Hence, there is no merit to Mother’s claim that DHS failed to prove
that termination of her parental rights best served the needs and welfare of
Child.
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In her second issue, Mother argues DHS did not present clear and
convincing evidence that Child’s emotional needs and welfare would be best
served by permanently severing her bond to Mother. Also, Mother claims
the trial court made a cursory, inadequately supported finding that
termination was in Child’s best interests. We find the record belies Mother’s
arguments.
We begin by pointing out that Child has been in DHS’s care her entire
life.2 At the time of the termination hearing, Child had been in a
pre-adoptive foster home for 14 months. (Notes of testimony, 7/28/14 at
14-15.) Child refers to her foster mother as “mom.” (Id. at 21.) According
to DHS caseworker Sharronda Pointer, Child is “very bonded with [foster
mom] and her whole entire family.” (Id.) Mother was asked to describe her
last visit with Child on May 22, 2014, and she responded: “When I saw
[Child] she was happy to see me. We bonded. I played around with her and
her toys.” (Id. at 39.)
This court has observed that no bond worth preserving is formed
between a child and a natural parent where the child has been in foster care
for most of the child’s life, and the resulting bond is attenuated. See In re
K.Z.S., 946 A.2d 753, 764 (Pa.Super. 2008). While Child has had visits with
Mother, those visits do not support Mother’s claim that a parental bond has
2
At the time of the termination hearing, Child was approximately 26 months
old.
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been forged.3 Ms. Pointer and Ivy Lloyd from the Northeast Treatment
Center, both testified that they did not believe there was a maternal bond
between Mother and Child, and Child would not suffer irreparable harm if
Mother’s parental rights were terminated. (Notes of testimony, 7/28/14 at
20, 25-26.) The trial court concluded “there is no parent/child bond” and
the termination of Mother’s parental rights would not cause irreparable harm
to Child. (Trial court opinion, 10/8/14 at 7.)4
Child’s main sources of love, stability, and security derive from her
foster mother, not Mother. Moreover, Mother is unable to meet the Child’s
emotional, physical, and developmental needs, or to provide Child with a
healthy and safe environment. While Mother may have an attenuated bond
with Child, it is of such a nature that its severance would not cause Child
undue harm. Accordingly, we discern no basis for disturbing the trial court’s
conclusion that termination of Mother’s parental rights served the needs and
welfare of Child.
Order affirmed.
3
According to DHS, Mother missed 14 of 29 visits with Child for the period
January 9, 2013 through June 25, 2013. Mother continued to miss visits
with Child after June of 2013 through May 22, 2014. (DHS’s brief at 17.)
4
Mother attempts to minimize the evidence presented by DHS regarding the
parent/child bond. The cases Mother cites are inapposite. Mother relies on
cases where no evidence was presented regarding the parent/child bond.
Here, DHS presented witness testimony to demonstrate Mother did not have
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2015
a bond with Child; Child had a bond with foster mother and her family; and
Mother’s behavior posed a risk of harm to Child.
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