In the Int. of: S.H., Appeal of: A.W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.W., MOTHER :
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: No. 3404 EDA 2019
Appeal from the Order Entered November 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000116-2017
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IN THE INTEREST OF: S.A-L.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.W., MOTHER :
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: No. 3460 EDA 2019
Appeal from the Order Entered November 6, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000785-2019
BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: Filed: August 13, 2020
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* Retired Senior Judge assigned to the Superior Court.
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A.W. (Mother) appeals from the orders, entered in the Court of Common
Pleas of Philadelphia, terminating her parental rights to her minor child, S.H.1
(born 12/16), pursuant to 23 Pa.C.S.A. §§ 2511 (a)(1), (2), (5), (8), and (b),
and changing S.H.’s permanency goal from reunification to adoption pursuant
to 42 Pa.C.S.A. § 6351(f.1).2 Upon careful review, we affirm.
DHS became involved with Mother’s family on January 17, 2017, after
receiving reports that Mother tested positive for PCP and marijuana at S.H.’s
birth. When S.H. was four weeks old, he sustained an unexplained fractured
skull. N.T. Termination Hearing, 11/6/19, at 8. As a result, on February 3,
2017, S.H. was removed from Mother’s care and placed into protective
custody by the Philadelphia Department of Human Services (DHS). Trial Court
Order, 2/19/17.
After S.H. was placed in DHS’ custody, Mother was given the following
case plan objectives: (1) complete parenting classes; (2) complete family
school; (3) attend supervised visits at DHS; and (4) submit to a dual-diagnosis
drug and alcohol and mental health assessment. Id. at 9. At the first
permanency hearing, held in May of 2017, the goal was reunification. Trial
Court Order, 5/3/2017. Mother complied with her plan objectives and
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1 A/K/A S.A.-L.H.
2 The appeal docketed at 3460 EDA 2019 was transferred to this panel as a
related appeal on July 8, 2020. See Order Transferring Appeal, 7/8/20. We
consolidated the appeals at 3404 EDA 2019 and 3460 EDA 2019 sua sponte
for ease of disposition. See Pa.R.A.P. 513.
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appeared to have obtained stable housing with her biological mother; thus,
Mother and S.H. were reunified in February of 2018. N.T. Termination
Hearing, 11/6/19, at 10-11.
Following reunification, DHS and CUA were unable to locate Mother and
S.H. for almost three months. Id. On July 13, 2017, Mother and S.H. were
found at a relative’s home. Id. at 12. A 90-day safety plan was created with
that caregiver, and S.H. was enrolled in daycare; however, two days later,
CUA found that Mother and S.H. had absconded the caregiver’s home. Id.
Thus, on July 25, 2018, Child was placed back into DHS’ custody.
While Mother had custody of S.H., S.H. was not kept up to date on his
medical and dental appointments. Id. at 24. Additionally, Mother did not
enroll S.H. in daycare. Id. at 12.
Following S.H.’s return to DHS care, Mother was compliant with some of
her objectives, but failed to obtain stable housing and employment. Id. at
13, 25. Between February 2018 and November 2019, Mother provided
fourteen different addresses to CUA, almost all of which were invalid. Id. at
13-14. Mother acquired full-time employment at Speedway in Norristown in
August of 2018, but quit three months later, claiming the commute was too
far. Id. at 26. At the time of the termination hearing, Mother worked
approximately eight hours a week, employed as a home health aide for
Credence Home Healthcare. Id. at 25.
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With regard to her court-ordered scheduled and random drug
screenings, Mother was minimally compliant. Id. at 25. Between September
6, 2018 and May 29, 2019, Mother failed to complete any random drug
screenings. Id. at 15. Out of the twenty-one random drug tests Mother was
required to complete, she completed three. Id. Mother completed four
additional drug tests on days she had selected. Id. On April 11, 2019, Mother
completed a scheduled drug test following a permanency hearing. Id. at 16-
17. The sample she provided had particles floating in it, which suggested
tampering. N.T. Permanency Hearing, 6/13/19, at 10-11. When asked to
provide another sample that day, Mother refused. Id. Instead, Mother came
back the following day to provide the sample. Id. At the termination hearing,
Mother stated that she did not retake the drug test the same day because she
was late for her shift as a home health aide at Aveanna. N.T. Termination
Hearing, 11/6/19, at 51. Mother, however, offered no proof of her
employment at Aveanna. Id. at 25-26. CUA case manager Jelea McNeil
testified that Mother’s non-compliance with drug screening, inconsistent and
questionable employment, and unstable housing were Mother’s greatest
obstacles to reunification. Id. at 20-21.
On October 21, 2019, DHS filed a petition to involuntarily terminate
Mother’s parental rights to S.H. pursuant to 23 Pa.C.S.A. §§ 2115 (a)(1), (2),
(5), and (8), and (b), and to change S.H.’s permanency goal to adoption
pursuant to 42 Pa.C.S.A. § 6351(f.1). On November 6, 2019, following a
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hearing, the trial court terminated Mother’s parental rights to Child and
changed Child’s permanency goal to adoption. Mother filed this timely
appeal.3 She raises the following issues for review:
(1) Did the trial court err as a matter of law or abuse its discretion
when it found that the Philadelphia Department of Human Services
(DHS) met its burden to prove that the requirements of 23
Pa.C.S.A. § 2511(a) were met?
(2) Did the trial court err as a matter of law or abuse its discretion
when it found that DHS met its burden to prove that the
requirements of 23 Pa.C.S.A. § 2511(b) were met?
(3) Did the trial court err as a matter of law or abuse its discretion
when it found that it was in [S.H.’s] best interest to change the
permanency goal from reunification to adoption?
Appellant’s Brief, at 2.
In an appeal from an order terminating parental rights, the scope of
review is comprehensive. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007).
This Court considers “all the evidence presented as well as the trial court’s
factual findings and legal conclusions.” Id. We will reverse “only if we
conclude that the trial court abused its discretion, made an error of law, or
lacked competent evidence to support its findings.” Id. It is well settled that
“[t]he 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. & J.G., 855 A.2d 68, 73-74 (Pa. Super. 2004)
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3The court also terminated the parental rights of Child’s father. Father did
not appeal the termination of his parental rights. See Trial Court Opinion,
1/13/20, at 1.
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(citation omitted). “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) (citation
omitted).
The termination of parental rights is governed by 23 Pa.C.S.A. § 2511
of the Adoption Act,4 which provides, in relevant part, 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:
(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
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4 23 Pa.C.S.A. §§ 2101-2938.
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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.
***
(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)(1), (2), (5), (8), and (b).
Parental rights may be involuntarily terminated “where any one
subsection of [s]ection 2511(a) is satisfied, along with consideration of the
subsection 2511(b) provisions.” In re Z.P., 994 A.2d 1108, 1115 (Pa. Super.
2010). In this two-step analysis, the focus is initially on the conduct of the
parent. See In re L.M., supra at 511. “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).” Id. This
standard requires evidence “so clear, direct, weighty, and convincing as to
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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).
If the court decides that the parent’s conduct warrants termination of
parental rights, it then engages in the second part of the analysis pursuant to
2511(b). Id. “One major aspect of [this] 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.Additionally, the court must “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[.]” In re N.A.M., 33
A.3d 95, 103 (Pa. Super. 2011).
When changing a child’s permanency goal, the court must determine
the goal in accordance with the child’s best interests, not those of the parents.
See In re G.P.-R., 851 A.2d 967, 973 (Pa. Super. 2004). The “[s]afety,
permanency and well-being of the child must take precedence over all other
considerations.” 42 Pa.C.S.A. § 6351. Section 6351(f) provides, in pertinent
part, that at each permanency hearing, a court shall determine the following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of compliance with
the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
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(4) The appropriateness and feasibility of the current placement
goal for the child.
(5) The likely date by which the placement goal for the child might
be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
42 Pa.C.S.A. § 6351(f). Based upon the court’s determinations under section
6351(f), and all relevant evidence presented at the hearing, the court shall
choose a permanency goal under section 6351(f.1), which provides the
following relevant options:
(1) If and when the child will be returned to the child’s parent,
guardian or custodian in cases where the return of the child is best
suited to the safety, protection and physical, mental and moral
welfare of the child.
(2) If and when the child will be placed for adoption, and the
county agency will file for termination of parental rights in cases
where return to the child's parent, guardian or custodian is not
best suited to the safety, protection and physical, mental and
moral welfare of the child.
42 Pa.C.S.A. § 6351(f.1).
“When circumstances are such that the best interests of the child dictate
a goal change to adoption, then the trial court acts well within its authority to
order the goal change — even if the parent has made substantial progress
toward completion of his or her permanency plan[.]” In re A.K., 936 A.2d
528, 534 (Pa. Super. 2007); see also In re N.C., 909 A.2d 818, 823 (Pa.
Super. 2006) (finding goal change to adoption in best interest of child despite
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mother’s substantial progress toward permanency plan). Additionally, at the
review hearing for a child who has been removed from the parental home, the
court must consider the factors mandated under section 6351. See In re
D.P., 972 A.2d 1221, 1230 (Pa. Super. 2009) (citation omitted).
If a parent has “cooperated with the agency, achieved the goals of his
or her permanency plans, and alleviated the circumstances that necessitated
the child’s original placement[,]” the agency should continue efforts to reunite
the child with his or her parent. Id. (citation omitted). But, if a child welfare
agency makes reasonable efforts to return a foster child to his or her biological
parent, and those efforts have failed, the agency must redirect its efforts
towards placing the child into an adoptive home. See In re N.C., supra at
823.
Before we address the merits of Mother’s claims, we must address the
shortcomings of her brief submitted for 3404 EDA 2019, the appeal of S.H.’s
permanency goal change to adoption.5 Appellate briefs must conform in all
respects to the briefing requirements set forth in the Pennsylvania Rules of
Appellate Procedure; otherwise, they may be quashed or dismissed. See
Pa.R.A.P. 2101. Regarding the summary of argument section of an appellate
brief, Rule 2118 requires a “concise, but accurate, summary of the arguments
presented in support of the issues in the statement of questions involved.
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5 Mother submitted separate, materially different, briefs for each appeal.
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Pa.R.A.P. 2118. Here, Mother’s summary of argument describes
circumstances wholly unrelated to those at hand. Additionally, in the first line
of the summary, Mother asks this Court to reverse the trial court’s decision,
but in the last line, she asks this Court to affirm. See Appellant’s Brief, at 8-
9.6
Additionally, Mother’s argument section is woefully underdeveloped.
Regarding S.H.’s permanency goal change to adoption, Mother’s argument
consists of a cut-and-paste of the rationale included in the trial court’s opinion,
followed by one paragraph of unsubstantiated conclusions about Mother’s
progress toward her goals. See Appellant’s Brief, at 26-27. She includes no
references to the record, as required by Pa.R.A.P. 2119(c). Mother’s section
2511(a)(2) analysis, in particular, appears to include pages of cut-and-pasted
material from an entirely different appeal. See Appellant’s Brief, at 13-14.
See also Pa.R.A.P. 2101 (if defects in brief of appellant are substantial, the
appeal may be quashed).
In this instance, the defects are indeed substantial; however, in the
interests of justice and expediency, we will address Mother’s permanency goal
change. We have carefully reviewed the record, and we are fully satisfied that
the trial court opinion properly disposes of the permanency goal change issue
Mother has raised on appeal. See Trial Court Opinion, supra at 5-6 (Mother
refused to participate in court-ordered drug testing to ensure her sobriety;
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6 This appears to be a cut-and-paste of filings from a different case.
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Mother refused to retake a drug screen after her initial sample appeared to be
tampered with; Mother was unable to secure safe and permanent housing for
S.H., providing 14 different addresses in 14 months; Mother failed to comply
with many of her objectives, specifically drug screens, employment and
housing; Mother’s failure to comply with her plan objectives undermined S.H.’s
safety; and S.H.’s permanency interests were best served by changing the
goal to adoption).
After careful review, we are also satisfied that the trial court opinion
properly disposes of Mother’s appeal from the order terminating her parental
rights. Here, the evidence of record supports the trial court’s finding that
termination was proper pursuant to sections 2511(a)(1), (2), (5) and (8).
See Trial Ct. Op., supra at 7-13 (finding: (1) pursuant to section 2511(a)(1),
Mother’s refusal to comply with her single case plan objectives, failure to
acquire stable housing, failure to acquire more than eight hours a week of
work, failure to properly address her PCP and marijuana usage, and failure to
complete random drug screenings evidenced settled purpose of relinquishing
parental claim to S.H. and failure to perform parental duties; (2) pursuant to
2511(a)(2), “incapacity,” “refusal,” and “neglect” exists given Mother’s failure
to comply with random drug screenings despite fact she knew compliance
would reinstate community visits and potentially eliminate need for future
random drug screenings, Mother’s failure to keep S.H. up to date medically in
her custody, and Mother’s failure to comply with her objectives, which left S.H.
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without essential parental care; (3) pursuant to sections 2511(a)(5) and (8),
at the time of the hearing S.H. had been out of Mother’s care for 28 of
previous 32 months, Mother’s unwillingness to comply with random drug
screening, find stable housing, or find adequate employment shows
circumstances leading to S.H.’s placement are unresolved and Mother is
unwilling to resolve them, adoption is in S.H.’s best interest as he has adjusted
well to pre-adoptive home and built strong bond with foster parent).
Further, the trial court opinion accurately explains why Mother’s parental
rights were correctly terminated pursuant to section 2511(b). See Trial Ct.
Op., supra, at 14-15 (finding: S.H. would not suffer irreparable emotional
harm if Mother’s parental rights were terminated; S.H. does not seek comfort
or care from Mother; S.H. seeks comfort and care from others, including his
foster parents; testimony shows S.H.’s primary attachment is with his foster
parents; S.H. is no closer to reunification than when the case was initiated in
2017; Mother had not been able to meet S.H.’s needs for 32 months prior to
the termination hearing).
We conclude that the trial court’s decisions to terminate Mother’s
parental rights under sections 2511(a) and (b) are supported by clear and
convincing evidence. In re L.M., supra. We also conclude that the trial court
correctly determined that it was in S.H.’s best interests to change the
permanency goal from reunification to adoption pursuant to 42 Pa.C.S.A. §
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6351(f.1). In re: A.K., supra. We find no abuse of discretion. In re L.M.,
supra.The trial court opinion, authored by the Honorable Daine Grey, Jr.,
properly disposes of the issues Mother has raised on appeal. Therefore, we
affirm the trial court’s orders based on Judge Grey’s opinion, and we direct
the parties to attach a copy of that opinion in the event of further proceedings.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/20
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