In Re: S.A.F.P., Jr., Appeal of: K.M.F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.A.F.P.JR, A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.M.F., MOTHER :
:
:
:
:
: No. 2191 EDA 2019
Appeal from the Order Entered July 18, 2019
in the Court of Common Pleas of Bucks County,
Orphans' Court at No(s): No. 2019-A9013.
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 06, 2020
K.M.F. (Mother) appeals the order terminating her rights to her seven-
year-old son, S.A.F.P. Jr. (Child), pursuant to the Adoption Act. See 23
Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).1 After review, we affirm.
In an opinion filed on September 26, 2019, the orphans’ court provided
a thorough recitation of the facts and procedural history of this case. 2
Therefore, we will only briefly summarize them. Child, born in April 2011, was
removed from Mother’s custody in April 2017 due to concerns about Mother’s
substance abuse, lack of treatment, lack of supervision and protective
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* Retired Senior Judge assigned to the Superior Court.
1 S.P. (Father) voluntarily relinquished his parental rights.
2 See Orphans’ Court Opinion, 9/26/19, at 1-12.
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capacity, and because of the existence of domestic violence in the home.
Bucks County Children and Youth Services Agency (CYS) had received six
referrals for abuse against Child committed by Mother’s paramour (D.R.).3
Child was formally adjudicated dependent in May 2017. Child was placed in
the home of his maternal aunt and uncle.
At the time of Child’s adjudication, CYS developed a placement
permanency plan, which consisted of objectives Mother needed to fulfill in
order to be reunited with Child. Specifically, the plan obligated Mother to: 1)
obtain and maintain suitable housing; 2) obtain and maintain a source of
income; 3) obtain a mental health evaluation and follow any and all treatment
recommendations; 4) maintain regular visitation with Child; 5) submit to
random urine testing; and 6) address domestic violence concerns. Over the
course of the dependency case, Mother did not make significant progress
toward accomplishing any of these objectives. Of note, Mother chose to
remain in a violent relationship with her paramour instead of alleviating the
principal concerns that led to Child’s removal.
On February 5, 2019, CYS filed a petition to involuntarily terminate
Mother’s parental rights.4 The orphans’ court conducted evidentiary hearings
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3 In light of this Court’s redaction of all information that might identify Child,
we note that D.R. is most commonly identified as “Mr. R.” in the attached
orphans’ court opinion. See Orphans’ Court Opinion, 9/26/19, passim
(redacted).
4 In the parties’ briefs and in the orphans’ court opinion, there is reference to
a January 2019 goal change hearing. Those specifics are not in the record.
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in March 27, 2019. At the hearings, Child was represented by his guardian ad
litem, who indicated that Child’s legal interests merged with his best interests.
On July 8, 2019, the orphans’ court entered the order granting the petition
under 23 Pa.C.S.A. § 2511(a)(2), (5), (8) and (b). Mother timely filed this
appeal.
Mother raises the following issues for our review:
1. Did the [orphans’] court erroneously grant [CYS’s]
petition to involuntarily terminate the parental rights
of [Mother] pursuant to 23 Pa.C.S.A. § 2511(a)(2)
when [CYS] failed to prove the grounds thereunder by
clear and convincing evidence?
2. Did the [orphans’] court erroneously grant [CYS’s]
petition to involuntarily terminate the parental rights
of [Mother] pursuant to 23 Pa.C.S.A. § 2511(a)(5)
when [CYS] failed to prove the grounds thereunder by
clear and convincing evidence?
3. Did the [orphans’] court erroneously grant [CYS’s]
petition to involuntarily terminate the parental rights
of [Mother] pursuant to 23 Pa.C.S.A. § 2511(a)(8)
when [CYS] failed to prove the grounds thereunder by
clear and convincing evidence?
4. Did the [orphans’] court erroneously move its inquiry
to the needs and welfare of [C]hild pursuant to 23
Pa.C.S.A. § 2511(b) and erroneously find that
termination would best meet said needs and welfare
when [CYS] failed to prove grounds for involuntary
termination of parental rights pursuant to the grounds
alleged under 23 Pa.C.S.A. § 2511(a)(2), (5), and (8)
by clear and convincing evidence?
5. Did the trial court erroneously find that the needs and
welfare of [C]hild as contemplated under 23 Pa.C.S.A.
2511(b) were best met by terminating the parental
rights of [Mother]?
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Mother’s Brief at 6.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following principles:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court's determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of
the trial court if they are supported by the record. In re:
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
are supported, appellate courts review to determine if the
trial court made an error of law or abused its
discretion. Id.; In re R.I.S., 36 A.3d 567, 572 (Pa.
2011) (plurality). As has been often stated, an abuse of
discretion does not result merely because the reviewing
court might have reached a different conclusion. Id.; see
also Samuel–Bassett v. Kia Motors America, Inc., 34
A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts
are not equipped to make the fact-specific determinations
on a cold record, where the trial judges are observing the
parties during the relevant hearing and often presiding over
numerous other hearings regarding the child and
parents. R.J.T., 9 A.3d at 1190. Therefore, even where the
facts could support an opposite result, as is often the case
in dependency and termination cases, an appellate court
must resist the urge to second guess the trial court and
impose its own credibility determinations and judgment;
instead we must defer to the trial judges so long as the
factual findings are supported by the record and the court's
legal conclusions are not the result of an error of law or an
abuse of discretion. In re Adoption of Atencio, 650 A.2d
1064, 1066 (Pa. 1994).
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In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We have
explained that 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.’ ” Id. (quoting In re J.L.C., 837 A.2d 1247, 1251
(Pa. Super. 2003)). Moreover, this Court may affirm the trial court's decision
regarding the termination of parental rights with regard to any one subsection
of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
Here, the orphans' court terminated Mother's parental rights pursuant
to 23 Pa.C.S.A. § 2511(a)(2), (5), (8) and (b). We focus our review on
subsections (a)(2) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.—The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
(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.
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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. § 2511. This Court has explained that the focus in terminating
parental rights under section 2511(a) is on the parent, but under section
2511(b), the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999,
1008 (Pa. Super. 2008) (en banc).
Mother argues that the conditions which led to Child’s removal are in
the process of being remedied. Mother’s Brief at 18. Mother notes that she
has cooperated in her treatment plans and improved in her communication
with the foster parents. Id. at 19. Although Mother admits to the domestic
violence concerns involving her paramour, she argues that Child was never
exposed to those issues. Id. at 20. Finally, Mother argues that she has a
worthwhile bond with Child; and that although his preference is to reside with
the foster parents, Child maintained that he wanted contact with Mother. Id.
at 29.
In response, the orphans' court has provided a thorough evaluation
supporting termination of Mother's parental rights to Child pursuant to each
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challenged provision, including 23 Pa.C.S.A. § 2511(a)(2) and (b). Having
reviewed the notes of testimony and the certified record, we conclude that the
Honorable Gary B. Gilman’s findings and conclusions are supported by clear
and convincing evidence of record, and we adopt Judge Gilman’s opinion as
our own.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/20
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5The parties are directed to attach a copy of the orphans’ court opinion of
September 25, 2019 to any future filings in this matter.
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