In the Interest of: M.J.C., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.J.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.C., MOTHER : No. 3168 EDA 2016
Appeal from the Decree Entered September 8, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at Nos: AP #CP-51-AP-0000760-2016,
DP #CP-51-DP-0002208-2015, FID #51-FN-001817-2015
IN THE INTEREST OF: S.P.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.C., MOTHER : No. 3174 EDA 2016
Appeal from the Decree Entered September 8, 2016
In the Court of Common Pleas of Philadelphia County
Domestic Relations at Nos: AP# CP-51-AP-0000761-2016,
DP# CP-51-DP-0002206-2015, FID# 51-FN-001817-2015
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 17, 2017
C.C. (“Mother”) appeals from the decrees entered September 8, 2016,
in the Court of Common Pleas of Philadelphia County (“trial court”), which
involuntarily terminated her parental rights to her minor sons, M.J.C., born
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in May 2007, and S.P.R., born in February 2015 (collectively, “the
Children”).1 After careful review, we affirm.
The trial court summarized the factual and procedural history of this
matter as follows.
The family in this case became known to [the Philadelphia
Department of Human Services (“DHS”)] on January 21, 2015,
when DHS received a report that there were domestic violence
issues between Mother and [D.D.R., Jr.] Mother’s whereabouts
were unknown. On March 27, 2015, DHS learned that Mother
was residing at a domestic violence women’s shelter with the
Children. On July 23, 2015, DHS learned that while living at the
shelter, Mother had left [S.P.R.] alone in a room. [S.P.R.] had
stopped breathing and was taken to the hospital. DHS met with
Mother at the hospital and implemented a Safety Plan. On
August 4, 2015, DHS learned that Mother was about to be
discharged from the shelter because she had informed [D.D.R.,
Jr.,] of the shelter’s location. [D.D.R., Jr.,] had appeared at the
shelter and had an altercation with Mother. On August 5, 2015,
DHS obtained an Order of Protective Custody and placed the
Children in a foster home. On September 30, 2015, the [trial]
court adjudicated the Children dependent. The case was
transferred to a Community Umbrella Agency (“CUA”) which
developed a Single Case Plan (“SCP”) with objectives for Mother.
Over the course of 2015 and 2016, Mother failed to successfully
complete her objectives and visit the Children consistently. On
August 24, 2016, DHS filed [] petition[s] to terminate Mother’s
parental rights.
Trial Court Opinion, 11/16/16, at 1-2.
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1
The trial court entered separate decrees that same day, involuntarily
terminating the parental rights of M.J.C.’s putative father, M.L.; involuntarily
terminating the parental rights of any unknown father that M.J.C. may have;
and involuntarily terminating the parental rights of S.P.R.’s putative father,
D.D.R., Jr. Neither M.L., D.D.R., Jr., nor any unknown father appealed the
termination of his parental rights.
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The trial court conducted a termination hearing on September 8, 2016.
Following the hearing, the trial court entered decrees involuntarily
terminating Mother’s parental rights to the Children. On October 7, 2016,
Mother timely filed pro se notices of appeal, along with concise statements
of errors complained of on appeal. Mother’s counsel filed notices of appeal
and concise statements of errors complained of on appeal that same day.2
Mother now raises five questions for our review.
1. Whether the trial court erred by terminating the parental
rights of [M]other pursuant to 23 Pa. C.S.A. [§] 2511(a)(1)
without clear and convincing evidence of [M]other’s intent to
relinquish her parental claim or refusal to perform her parental
duties[?]
2. Whether the trial court erred by terminating the parental
rights of [M]other pursuant to 23 Pa. C.S.A. [§] 2511(a)(2)
without clear and convincing evidence of [M]other’s present
incapacity to perform parental duties[?]
3. Whether the trial court erred by terminating the parental
rights of [M]other pursuant to 23 Pa. C.S.A. [§] 2511(a)(5)
without clear and convincing evidence to prove that reasonable
efforts were made by [DHS] to provide [M]other with additional
services and that the conditions that led to placement of the
[C]hildren continue to exist[?]
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2
Mother was represented by counsel during the termination proceedings,
and her counsel continues to represent her on appeal. Because hybrid
representation is not permissible, we will accept the notices of appeal and
concise statements filed by Mother’s counsel, and we will reject Mother’s pro
se filings. See Commonwealth v. Glacken, 32 A.3d 750, 752 (Pa. Super.
2011) (citations omitted) (“Pursuant to our Rules of Appellate [P]rocedure
and decisional law, this Court will not review the pro se filings of a counseled
appellant.”).
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4. Whether the trial court erred by terminating the parental
rights of [M]other pursuant to 23 Pa. C.S.A. [§] 2511(a)(8)
without clear and convincing evidence that the conditions that
led to placement of the [C]hildren continue to exist when
[M]other presented evidence of compliance with the goals and
objectives of her family service plan[?]
5. Whether the trial court erred by terminating the parental
rights of [M]other pursuant to 23 Pa. C.S.A. [§] 2511(b) without
clear and convincing evidence that there is no parental bond
between [M]other and [C]hildren and that termination would
serve the best interest of the [C]hildren[?]
Mother’s Brief at 7.3
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In her counseled notices of appeal, Mother indicated that she was
appealing “the final order entered in this matter on [the] 8th day of
September 2016, where the [trial court] changed the goal to adoption and
terminated Mother’s parental rights.” We observe that the decrees
terminating Mother’s parental rights did not change the Children’s
permanent placement goals to adoption. In addition, while the trial court
entered permanency review orders on September 8, 2016, those orders did
not change the Children’s permanent placement goals to adoption either.
The orders maintained the Children’s permanent placement goals as “return
to parent or guardian,” and merely added adoption as a concurrent
placement plan. See In re M.T., 101 A.3d 1163, 1166 (Pa. Super. 2014)
(quoting In re N.W., 859 A.2d 501, 507 (Pa. Super. 2004)) (“‘[A] goal
change from reunification to adoption [i]s not a necessary prerequisite to the
initiation of involuntary termination proceedings.’”). Thus, no goal change
orders exist for us to review on appeal. To the extent the September 8,
2016 permanency review orders can be construed as goal change orders
because they added adoption as a concurrent placement plan, Mother failed
to include any claim relating to those orders in her statement of questions
involved, and failed to develop any relevant argument in her brief. Any
challenge to those orders is therefore waived. See Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (“We will not
ordinarily consider any issue if it has not been set forth in or suggested by
an appellate brief’s statement of questions involved[.]”) (citations omitted);
In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011), appeal denied, 24
A.3d 364 (Pa. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa. Super.
2010)) (“‘[W]here an appellate brief fails to provide any discussion of a
(Footnote Continued Next Page)
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We consider Mother’s claims 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 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
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(Footnote Continued)
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”’).
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emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the trial court terminated Mother’s parental rights
pursuant to Section 2511(a)(1), (2), (5), (8), and (b). This Court need only
agree with the trial court 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).
Here, we will analyze the trial court’s decision to terminate under Section
2511(a)(8) and (b), which provides as follows.4
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In its brief, DHS observes that Mother challenged the trial court’s findings
with respect to Section 2511(a)(1), (8), and (b) in her counseled concise
statement, but failed to challenge the trial court’s findings with respect to
Section 2511(a)(2) and (5). DHS’s Brief at 14-15. DHS insists that Mother
therefore waived any challenge to Section 2511(a) pursuant to In re
K.T.E.L., 983 A.2d 745 (Pa. Super. 2009). Id. at 15. In K.T.E.L., a prior
panel of this Court concluded that the appellant waived her challenges to
Section 2511(a)(1), (2), and (5), because she failed to include those
subsections in her statement of questions involved. 983 A.2d at 750.
Contrary to the argument presented by DHS, however, we did not conclude
that the appellant waived any challenge to Section 2511(a) as a result.
Instead, we proceeded to address the merits of the appeal under Section
2511(a)(8), as the appellant preserved her challenge to that subsection
successfully. Id. at 750-51. While we agree that Mother waived her
challenges to Section 2511(a)(2) and (5) by failing to include those
subsections in her concise statement, we decline to conclude that she
waived any challenge to Section 2511(a), and we will proceed to address the
merits of her remaining claims. See id.; Krebs, 893 A.2d at 797 (citations
omitted) (“[A]ny issue not raised in a statement of matters complained of on
appeal is deemed waived.”).
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(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
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(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
welfare of the child.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as 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(a)(8) and (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(8).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(8), the following factors must be demonstrated: (1) The
child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
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In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
“Notably, termination under Section 2511(a)(8)[] does not require an
evaluation of [a parent’s] willingness or ability to remedy the conditions that
led to placement of her children.” In re Adoption of R.J.S., 901 A.2d 502,
511 (Pa. Super. 2006) (citations omitted) (emphasis in original).
Instantly, the trial court addressed Section 2511(a)(8) in its opinion
only briefly. The trial court explained that it found “clear and convincing
evidence that . . . throughout the life of the case[]Mother failed to
successfully complete her objectives and visit the Children consistently.
DHS’s witness was unwavering and credible.” Trial Court Opinion, 11/16/16,
at 4.
In response, Mother argues that she remedied the conditions which led
to the Children’s placement in foster care, and that there is no evidence to
suggest that terminating her parental rights would serve the Children’s
needs and welfare. Mother’s Brief at 13. Mother contends that she is
employed and has suitable housing for the Children, that she is sober, and
that she completed domestic violence and healthy relationships programs.
Id.
After carefully examining the record in this matter, we conclude that
the trial court did not abuse its discretion by involuntarily terminating
Mother’s parental rights pursuant to Section 2511(a)(8). During the
termination hearing, DHS presented the testimony of CUA case manager,
Ashley Burke. Ms. Burke testified that Mother’s SCP objectives included
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completing a domestic violence program, attending mental health treatment,
attending the Achieving Reunification Center (“ARC”), and visiting with the
Children. N.T., 9/8/16, at 30. With respect to ARC, CUA asked Mother to
attend parenting, healthy relationships, mental health, and housing
programs. Id. at 31.
Concerning Mother’s compliance with these objectives, Ms. Burke
testified that Mother completed a heathy relationships program at ARC on
March 4, 2016, and completed a domestic violence program on September
6, 2016. Id. at 35, 46. Mother began a parenting program on July 13,
2016, but did not complete the program by the time of the termination
hearing. Id. at 33.
With respect to Mother’s mental health, Ms. Burke testified that Mother
completed an initial mental health evaluation at Citywide Community
Counseling Services on December 9, 2015. Id. at 42, 45. The evaluation
recommended that Mother participate in weekly therapy sessions. Id. at 42.
Mother reported to Ms. Burke that she attended mental health treatment for
a few months following the evaluation, but then stopped.5 Id. at 45.
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DHS also presented the testimony of Community Behavioral Health
employee, Sharina Gatling. Ms. Gatling testified that she contacted the
director of Citywide Community Counseling Services, who informed her that
Mother attended an intake appointment there on May 10, 2016. N.T.,
9/8/16, at 15. Mother missed two medication management appointments,
but then returned on June 1, 2016. Id. Mother next attended on June 21,
2016, and returned on September 7, 2016. Id.
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With respect to housing, Ms. Burke testified that Mother completed
the ARC housing workshop in July 2016. Id. at 36. CUA then referred
Mother to the DHS housing unit. Id. However, Mother continues to lack
appropriate housing. Id. Mother recently informed CUA that she is residing
with her cousin. Id. at 38-40. Mother informed CUA that she intends to
leave her cousin’s residence in the near future and move to a new property,
which CUA has not had the opportunity to asses. Id. at 39-41.
With respect to visitation, Ms. Burke testified that CUA initially offered
Mother two visits with the Children per week. Id. at 48. Visits were
decreased to once per week in March 2016, due to Mother’s noncompliance.
Id. Specifically, Mother was attending only half of her visits. Id. Mother
did not provide a reason for her failure to attend visits. Id. at 49. After
March 2016, Mother continued to attend only half of her visits. Id. at 49-50.
Mother’s attendance at visits did not improve until June 2016. Id. Since the
prior court hearing in June 2016, Mother attended eleven out of twelve
visits. Id.
Thus, the record confirms that the Children have been removed from
Mother’s care for over twelve months. The Children were removed from
Mother’s care on August 5, 2015. At the time of the termination hearing on
September 8, 2016, the Children had been removed for over thirteen
months.
Further, the conditions which led to the Children’s removal continue to
exist. At the time of the termination hearing, Mother continued to lack
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appropriate housing. Mother also continued to suffer from deficient
parenting skills, as demonstrated by her failure to complete parenting
classes, her failure to address her mental health needs, and her failure to
attend visits with the Children consistently for the majority of their time in
foster care.
Finally, terminating Mother’s parental rights will best serve the needs
and welfare of the Children. The Children have resided in foster care for
over a year, and it is not clear when, if ever, Mother will be able to care for
them. As this Court has stated, “a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume
parenting responsibilities. The court cannot and will not subordinate
indefinitely a child's need for permanence and stability to a parent’s claims
of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
at 513.
We next consider whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(b). We have
discussed our analysis pursuant to Section 2511(b) as follows.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with his or
her child is a major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many factors to be
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considered by the court when determining what is in the best
interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).6
Here, the trial court concluded that terminating Mother’s parental
rights would best serve the Children’s needs and welfare. The trial court
emphasized that Mother exhibits deficient parenting skills, which resulted in
M.J.C. being exposed to domestic violence, and S.P.R. nearly dying in July
2015. Trial Court Opinion, 11/16/16, at 5. The trial court found that the
Children have a “friendly relationship” with Mother, but do not have a
parent/child bond. Id. at 5-6. The trial court further found that both
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We observe that Sections 2511(a)(8) and (b) both require a court
considering a termination petition to assess the needs and welfare of the
relevant child or children. However, the needs and welfare analysis required
by Section 2511(a)(8) is distinct from the needs and welfare analysis
required by Section 2511(b), and must be addressed separately. See In re
C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc) (“[W]hile both
Section 2511(a)(8) and Section 2511(b) direct us to evaluate the ‘needs and
welfare of the child,’ . . . they are distinct in that we must address Section
2511(a) before reaching Section 2511(b).”).
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Children reside in a pre-adoptive foster home, and that terminating Mother’s
parental rights would not cause them irreparable harm. Id. at 6.
Mother argues that she and the Children share a strong bond.
Mother’s Brief at 14. Mother contends that she would have been able to
further strengthen this bond if DHS provided her with reasonable
reunification efforts. Id. Mother insists that her failure to attend all of her
visits with the Children was a result of DHS’s failure to accommodate her
work schedule. Id.
We again discern no abuse of discretion. Concerning the relationship
between Mother and M.J.C., Ms. Burke testified that they share “more of a
friendship” than a parent/child bond. N.T., 9/8/16, at 54, 84. Ms. Burke
explained that M.J.C. displays “parentified tendencies.” Id. at 54. When
M.J.C. entered foster care, he tried “to assume a lot of the caregiver
responsibilities for his brother. You could ask him anything and he knew all
about his brother, down to the doctor’s appointments, [and] what kind of
formula he ate.” Id. Ms. Burke further explained that M.J.C. initially
became upset when Mother missed visits. Id. at 49. M.J.C. “struggled. He
became withdrawn in the foster home. He began acting out.” Id. However,
after M.J.C. began attending mental health treatment, his behavior greatly
improved. Id. at 90. Ms. Burke noted that M.J.C. resides in a pre-adoptive
foster home, and that he has a good relationship with both his foster mother
and her adult daughter. Id. at 57, 60. Ms. Burke opined that M.J.C. would
not suffer irreparable harm if Mother’s parental rights are terminated, “due
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to the parentified relationship he has with his mother and his continued
involvement with therapeutic services and his bond with the foster parent.”
Id. at 58. With respect to S.P.R., Ms. Burke opined that he has a
parent/child bond with his pre-adoptive foster parents. Id. at 61. Ms. Burke
did not believe that terminating Mother’s parental rights would cause S.P.R.
irreparable harm, “[d]ue to his young age and his bond with the foster
parents.” Id. at 60.
Thus, we conclude once again that terminating Mother’s parental rights
will best serve the needs and welfare of the Children. Mother remains
incapable of caring for the Children. Meanwhile, the Children share a
parent/child bond with their pre-adoptive foster parents. Ms. Burke testified
that M.J.C. does not have a parent/child bond with Mother, and there is no
evidence in the record to suggest that S.P.R. has a parent/child bond with
Mother. See In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008) (“In
cases where there is no evidence of any bond between the parent and child,
it is reasonable to infer that no bond exists.”). The trial court was free to
accept the testimony of Ms. Burke that terminating Mother’s parental rights
would not cause the Children to suffer irreparable harm.
Additionally, while Mother now claims on appeal that DHS did not
provide her with reasonable reunification efforts by failing to accommodate
her work schedule, our review of the record reveals that Mother failed to
raise this issue during the termination hearing. We cannot fault the trial
court for failing to accept testimony that Mother did not provide. Even if
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Mother had testified during the termination hearing that DHS did not
accommodate her work schedule, the failure to provide reasonable
reunification efforts does not preclude termination of parental rights under
Section 2511(a)(8) and (b). See In re D.C.D., 105 A.3d 662, 671-76 (Pa.
2014) (holding that termination of parental rights pursuant to Section
2511(a)(2) does not require the provision of reasonable reunification
efforts); In re Adoption of C.J.P., 114 A.3d 1046, 1055 (Pa. Super. 2015)
(applying D.C.D. to Section 2511(a)(8)).
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Mother’s parental rights to the
Children. We therefore affirm the court’s termination decrees.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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