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

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
APPEAL OF: S.C., MOTHER
No. 3669 EDA 2016
Appeal from the Orders Dated October 25, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000864-2016
CP-51-DP-0000666-2015
BEFORE: BOWES, SOLANO, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 14, 2017
S.C. (“Mother”) appeals the decree terminating her parental rights to
her son L.C., pursuant to 23 Pa.C.S. § 2511 (a) and (b) 1 and the
permanency review order changing L.C.’s permanent placement goal from
reunification to adoption pursuant to 42 Pa.C.S. § 6351. We affirm.
L.C. was born during March 2015. The day following his birth, the
Philadelphia Department of Human Services (“DHS”) received a General
Protective Services (“GPS”) report indicating that Mother tested positive for
PCP and marijuana during the delivery. The report also noted Mother’s
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1
The parental rights of S.C.’s unknown-putative father were also
terminated.
* Retired Senior Judge specially assigned to the Superior Court.
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history of substance abuse, untreated mental health conditions, and her
prior involvement with DHS. The parental rights to three of L.C.’s siblings
were previously terminated involuntarily due to Mother’s drug use and
mental health problems, the most recent termination having occurred
approximately five months prior to L.C.’s birth.
On March 27, 2015, the juvenile court adjudicated L.C. dependent and
placed him in his current pre-adoptive foster home. As the initial
permanency goal was reunification, Mother was granted supervised visitation
with L.C. The trial court ordered Mother to receive a drug screen, a dual
diagnosis assessment, and three random drug tests through the clinical
evaluation unit (“CEU”). The trial court further directed that Mother was
precluded from in-home visitation until she engaged in a drug and alcohol
treatment program. Mother did not comply with the substance abuse
components of the plan. She left her initial CEU evaluation early, neglected
to appear for the rescheduled evaluation, and made no further contact with
the CEU.
On June 29, 2015, Mother was arrested for arson, reckless
endangerment, criminal mischief, and making terroristic threats. She was
incarcerated pending trial at Philadelphia’s Riverside Correctional Facility and
remained incarcerated through the termination hearing on October 25, 2016.
Prior to her arrest, Mother received a service plan that outlined her
objectives to complete drug and alcohol treatment, mental health treatment,
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parental training, and acquire sufficient housing. She was provided a second
service plan during her incarceration. That plan required Mother to utilize
programs available to her in jail. On May 26, 2016, Mother’s objectives
were:
(1) to comply with all policies while incarcerated; (2) to continue
to attend [a re-entry] program and to provide . . .
documentation of completion; (3) to obtain and maintain
employment; (4) to continue attending therapy sessions; (5) to
continue to be employed while incarcerated[.]
Trial Court Opinion, 1/25/17, at unnumbered page 5.
Mother’s compliance was negligible. Prior to incarceration, she failed
to maintain supervised visitation with L.C., neglected to contact the agency
or inquire as to L.C.’s well-being, and ignored her substance abuse
treatment through CEU. Although Mother currently asserts that she utilized
several programs while in prison, namely anger management, art therapy,
and parenting classes, she did not document these achievements. She also
claimed, without support, that she completed a course on CPR and the re-
entry program entitled “Chill Out.” Significantly, Mother did not claim to
have completed any drug and alcohol treatment or to have addressed her
mental health problems.
On September 23, 2016, DHS filed a petition for the involuntary
termination of Mother’s parental rights and a concomitant petition to change
L.C.’s placement goal from reunification to adoption. During the ensuing
hearing, Mother requested a continuance in order to document her
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compliance with the service plan objectives while in prison. The trial court
denied that entreaty and at the close of the evidence it granted DHS’s
petition for a goal change and terminated Mother’s parental rights pursuant
to 23 Pa.C.S. § 2511(a)(1), (a)(2), (a)(5), (a)(8) and (b). Mother filed a
timely appeal.
She raises the following issues:
1. Was Mother denied a fair hearing and due process of law
when the Court denied her request for a short continuance to
locate the documentation of her completion of [the] case plan
objectives?
2. Did the Department of Human Services (DHS) sustain the
burden that Mother’s rights should be terminated when there
was evidence that Mother had completed and/or been actively
completing her permanency goals?
Mother’s brief at 4.
At the outset, we address Mother’s contention that she was deprived
of due process because the trial court refused her request for a continuance
to gather proof of her purported progress with the service plan. Mother
argues that her request for a continuance was “particularly reasonable”
considering the circumstances. See Mother’s brief at 11-12. Unfortunately
for Mother, the reasonableness of her request is not the basis of our review.
In actuality, we review a trial court’s denial of a request for continuance for
an abuse of discretion. In re J.K., 825 A.2d 1277, 1280 (Pa.Super. 2003)
(citation omitted). As this Court explained,
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Because a trial court has broad discretion regarding whether a
request for continuance should be granted, we will not disturb its
decision absent an apparent abuse of that discretion. An abuse
of discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will.
Id. With the correct standard in mind, we review Mother’s grievance and
find that the record reveals no abuse of discretion by the trial court in
denying Mother’s request for a continuance.
The following facts are relevant to our review. During the evidentiary
hearing, Mother testified that she completed several programs while
incarcerated that demonstrated her compliance with her objectives under
the service plan. N.T., 10/25/16, at 35-36. However, she neglected to
bring any documentation of her accomplishments to the hearing. Instead,
she asserted that the prison would not permit her to transport the
certificates of completion from the prison. Id. She admitted knowledge of
the scheduled proceeding two months in advance and allegedly mailed the
documents to a family member who was unable to bring them to court. Id.
at 39-40. However, based on Mother’s prior knowledge of the hearing, and
her previous experience with termination proceedings, the trial court found
that Mother’s explanation lacked credibility. Specifically, the court reasoned,
“[Mother] should have provided the documents to [counsel], she should
have brought the documents with her from prison, or she should have had a
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family member deliver the documents [for her].” Id. at 41. In short, the
court rejected Mother’s explanations and concluded, “If [Mother] was
diligent, she would have had the documents, if they exist, in [DHS’s] hands
in time for the hearing.” Id. at 42. Finally, in response to Mother’s
assertion that she did, in fact, attempt to have the documents delivered to
the court, it continued, “You knew two months ago this date was coming.
You’ve been through prior termination hearings. You’re not new to the
system or someone that’s coming in here with clean hands, in my opinion.”
Id. Thus, the trial court denied Mother’s request for a continuance and
rejected her uncorroborated testimony that she completed various prison
programs. Id. at 43.
As the certified record supports the trial court’s credibility
determination, we will not disturb it. We have stated, “it is the exclusive
province of the [fact-finder], not the court, to decide . . . the credibility of
the witnesses and the weight and effect to be given to all of the testimony.”
Commonwealth v. Hall, 867 A.2d 619, 633 (Pa.Super. 2005). Initially, the
trial court did not manifest “partiality, unreasonableness, bias, or ill-will” by
making a credibility determination against Mother and denying her request.
In re K.J., 27 A.3d 236, 243 (Pa.Super. 2011) (relating to the denial of
continuance for an evidentiary hearing based on parent’s alleged illness).
The trial court considered evidence that demonstrated Mother’s awareness of
her goals and established that she had sufficient notice of the hearing to
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obtain the documentation and transmit it to the court for review.
Significantly, one of Mother’s goals was to verify her progress with the
agency. Clearly, she failed in that regard. Likewise, there is no indication
that she attempted to produce the documents for counsel, and tellingly,
Mother’s brief does not allege prior counsel’s ineffectiveness for failing to
procure the purported documentation in anticipation of the hearing. As the
certified record sustains the trial court’s denial of Mother’s motion for a
continuance, there is no basis to disturb it.
In reference to Mother’s remaining claims, we first observe that, to the
extent that Mother challenges the juvenile court’s goal change order, that
issue is waived. While Mother purported to appeal the permanency review
order in which the juvenile court issued the goal change, she neglected to
assert any basis for reversal on appeal. At most, Mother’s brief set forth the
relevant statutory provisions under the Juvenile Act, i.e., § 6351, and then
proceeded to assail the order terminating her parental rights pursuant to the
Adoption Act without leveling any specific challenge to the goal change. The
failure to support her claim with relevant legal argument is fatal.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006). (“An
appellate brief must provide citations to the record and to any relevant
supporting authority. The court will not become the counsel for an appellant
and will not, therefore, consider issues which are not fully developed[.]”).
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Next, we address Mother’s contention that the trial court erred in
finding that DHS proved by clear and convincing evidence the statutory
grounds to terminate her parental rights pursuant to 23 Pa.C.S. § 2511 (a)
and (b). Again, no relief is due. The pertinent scope and standard of review
of an order terminating parental rights is as follows:
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 M.M., 106 A.3d 114, 117 (Pa.Super. 2014) (quoting In re S.H., 879
A.2d 802, 805 (Pa.Super. 2005)). In termination cases, 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 the
Interest of T.M.T., 64 A.3d 1119, 1124 (Pa.Super. 2013).
The 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." In re
R.N.J., 985 A.2d 273, 276. The trial court is free to make all
credibility determinations, and may believe all, part, or none of
the evidence presented. In re M.G., 855 A.2d 68, 73-74
(Pa.Super. 2004). If the findings of the trial court are supported
by competent evidence, 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).
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Id.Termination of parental rights is governed by 23 Pa.C.S. § 2511, which
provides 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
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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. § 2511.
Termination of parental rights requires a “bifurcated analysis” under §
2511(a) and (b). Adoption of C.J.P., 114 A.3d 1046, 1049 (Pa.Super.
2015). We explained,
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.
Id. at 1049-50 (quoting In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007)).
Herein, the trial court concluded that DHS met its burden to terminate
Mother’s parental rights to L.C. pursuant to § 2511(a) (1), (2), (5) and (8).
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See Trial Court Opinion/25/16, at unnumbered page 7. We need only agree
with the trial court as to any one subsection of § 2511(a) as well as (b) in
order to affirm the termination of parental rights. Adoption of C.J.P.,
supra at 1050. As we agree with the trial court’s conclusion that DHS
provided clear and convincing evidence to terminate Mother’s parental rights
to L.C. pursuant to § 2511(a)(1) and (b), we do not address the remaining
subsections of the statute.
Section 2511(a)(1) “provide[s] grounds for termination if the parent
evidenced a settled purpose of relinquishing parental claim to a child, or has
refused or failed to perform parental duties for a period of at least six
months.” In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012). DHS must
produce clear and convincing evidence of conduct that fulfills either one of
the two requirements outlined in § 2511(a)(1), it does not have to establish
both. In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (“parental rights
may be terminated pursuant to Section 2511(a)(1) if the parent either
demonstrates a settled purpose of relinquishing parental claim to a child or
fails to perform parental duties.”) While the statute targets the six months
immediately preceding the filing of the petition to terminate, the trial court
must consider the entire history of the case and not apply the six-month
statutory period mechanically. In re of K.Z.S., 946 A.2d 753, 758
(Pa.Super. 2008).
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Our Supreme Court has noted that parental duty under § 2511(a)(1)
includes “an affirmative duty to love, protect and support” the child and “to
make an effort to maintain communication with that child.” In re Adoption
of S.P., supra at 828. When the parent’s fulfillment of those duties is made
more difficult by incarceration, “we must inquire whether the parent has
utilized those resources at his or her command while in prison in continuing
a close relationship with the child.” Id. Finally, our Supreme Court
explained,
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent's
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant
to Section 2511(b).
Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998).
In the instant case, DHS established by clear and convincing evidence
that Mother failed to perform her parental duties to L.C. for more than six
months prior to the date DHS filed the termination petition. L.C. was
separated from mother at birth, nearly eighteen months prior to the
termination petition. DHS established that Mother avoided court-ordered
drug and alcohol evaluations and failed to complete her service plan goals
prior to her June, 2015 incarceration. DHS Exhibit 3; N.T., 10/25/16, at 20-
21. Further, Mother failed to inquire after the child’s well-being or attempt
to arrange visitations. Id. at 21. Her efforts did not improve with
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incarceration. Recall that Mother neglected to provide DHS with
documentation of any progress toward her service plan goals, and the trial
court rejected Mother’s claim that she did, in fact, complete various
programs while in prison. Indeed, Mother’s primary contention on appeal is
that the trial court erred in failing to assess greater weight to her testimony
regarding her accomplishments. This argument is unavailing.
As discussed supra, a witness’ credibility is a determination for the
fact-finder and will not be disturbed by this Court absent a showing of abuse
of discretion. In re J.K., supra at 1280. Mother provided no
documentation to establish her compliance with the plan and the trial court
did not find Mother’s testimony about her progress credible. N.T., 10/25/16,
at 41-42. Moreover, Mother’s continued interaction with drug and alcohol,
her absence from treatment prior to incarceration, and her demonstrable
lack of interest in L.C.’s well-being before and after incarceration further
demonstrate her failure to perform her parental duties to L.C. See In re
Adoption of S.P., supra at 828. Tellingly, while Mother assails the trial
court for allegedly making a faulty credibility determination, she neither
justified her failure to comply with the drug and alcohol treatment or the
remaining components of the service plan nor explained her indifference
toward L.C. Indeed, Mother did not make any remedial efforts prior to her
incarceration and even to the extent that her alleged achievements in prison
may be accepted as true, which the trial court declined to do, Mother made
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those purported gains only as a result of her confinement. Id. at 25, 27-28.
Furthermore, as it relates to the remaining considerations under Matter of
Adoption of Charles E.D.M., II, supra, Mother proffered no explanation
for her behavior and her post-separation contact was nonexistent. In sum,
the certified record sustains the trial court’s finding that DHS established by
clear and convincing evidence that Mother failed to perform her duties at any
time since L.C. was adjudicated dependent, including the final six months
prior to the termination petition pursuant to § 2511(a)(1). Hence, no relief
is due.
Finally, we consider whether DHS satisfied its burden pursuant to §
2511(b). Section 2511(b) requires the trial court to consider L.C.’s well-
being, including the bond he may have with Mother. We have elucidated this
principle as follows:
[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.
Adoption of C.J.P., supra at 1054 (citations omitted).
In the instant case, L.C. has been separated from Mother since birth
and, as of the date of the hearing, had no contact with her for more than
one and one-half years. N.T., 10/25/16, at 21. Mother never assumed any
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responsibility for addressing L.C.’s physical or emotional needs. Id. at 28.
She is a stranger to her son. Thus, no parent-child bond exists.
Accordingly, the certified record supports the trial court’s determination that
terminating Mother’s parental rights will have no detrimental effects on L.C.
Conversely, the evidence demonstrated that L.C. shares a strong bond
with his foster mother (“Foster Mother”), whom he refers to as “mom.” Id.
at 23-24, 26. L.C. has resided with Foster Mother in what is now his pre-
adoptive home since he was days old. Id. at 23. At every permanency
review hearing during the dependency proceedings, the juvenile court
attested to L.C.’s safety and well-being with Foster Mother. In addition to
her proactive attitude in obtaining L.C.’s medical care and addressing his
potential mental health issues, Foster Mother continues to satisfy all of his
daily needs. Id. at 23-24. In short, Foster Mother is the child’s primary
source of love, security, stability, and support. Id. at 24.
The foregoing evidence demonstrates that L.C.’s developmental,
physical and emotional needs and welfare are best provided for by his
current pre-adoptive environment with Foster Mother. Thus, we find that
the certified record supports the trial court’s conclusion that L.C.’s needs and
welfare will be served by the termination of parental rights pursuant to §
2511(b), in order to facilitate his adoption.
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Accordingly, we affirm the decree terminating Mother’s parental rights
to L.C. and the juvenile court order changing the placement goal to
adoption.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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