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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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Circulated 07/29/2020 02:58 PM
IN THE COURT OF COMMON PI,EAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
JUVENILE DIVISION
IN RE: S.H. SUPERIOR COURT
3460 EDA 2019
3LIO o>f4 cRo
COURT OF COMMON PLEAS
CP-51-AP-0000785-2019
CP-51-DP-0000116-2017
FID: 51 -FN -000137-2017
APPEAL OF: A.W., Mother
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0
*04 3v -t<
OPINION
DAINE GREY JR., J. DATE: January 13, 2020
A.W. ("Mother") timely appeals this Court's decrees entered on November 6, 2019,
granting the Philadelphia Department of Human Services' ("DHS") petitions to involuntarily
terminate her parental rights to her child, S.H., born December 2016 ("Child") pursuant to
the Adoption Act, 23 Pa. C.S.A. §§ 2511(a)(I), (2), (5), (8) and (b).'
I. PROCEDURAL HISTORY & FACTS
The relevant procedural history and facts are as follows: DHS first became aware of
Child and family after Mother tested positive for PCP and marijuana at Child's birth and Child
had an unexplained fractured skull. (N.T. 11/6/19 at 8). Child was removed from Mother's care
and placed into DHS custody. (Trial Court Order 1/19/2017). At the adjudicatory hearing held
' This Court entered separate decrees that same day, terminating the parental rights of the Child's putative
father. Father did not appeal the temiination of his parental rights.
1
on February 3, 2017, Child was adjudicated dependent based upon present inability, granting
DHS full legal custody. (Trial Court Order 2/3/2017). An initial permanency hearing was held
May 3, 2017, at which time the goal for Child was reunification with Mother. (Trial Court Order
5/3/2017). This Court reunited Child with Mother due to her compliance with her objectives in
February 2018. (Trial Court Order 1/23/2018). However, this Court ordered DHS to obtain and
Order for Protective Custody ("OPC") at a permanency review hearing on July 23, 2018 due to
testimony that CUA had not seen Child since July 13, 2018, Child was not up to date medically
or dentally and Child had not been enrolled in day care. (Trial Court Order 7/23/2018). Child
was recommitted to DHS custody at a Shelter Care hearing on July 25, 2018. (Trial Court Order
7/25/2018).
October 21, 2019, DHS filed petitions to involuntarily terminate Mother's parental rights
to the Child pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b) and to change the
Child's permanency goals to adoption. This Court conducted a combined termination and goal
change hearing (collectively the "TPR" hearing) on November 6, 2019. At the TPR hearing, the
Community Umbrella Agency "CUA" case manager, Jelea McNeil, testified that Child had been
in foster care since July 2018, after a period of reunification with Mother for five months. (N.T.
11/6/2019 at 11). According to Ms. McNeil, Mother was originally given the following case plan
objections: 1) complete parenting classes, 2) complete Family School, 3) supervised visits at the
agency and 4) dual diagnosis - drug and alcohol and mental health assessment prior to Mother's
reunification with Child. (Id at 9). 2 Ms. McNeil testified that Mother has failed to comply with
her Single Case Plan objectives in the eighteen months prior to the TPR hearing. (Id. at 28).
2 At the June 13, 2019 permanency review hearing, Ms. McNeil also indicated that Mother's objectives
include employment, random drug testing and housing. (N.T. 6/13/19 at 8).
2
According to Ms. McNeil, Mother had reported to her fourteen different addresses during the
time period of February 2018 to July 2018, almost all of which were deemed invalid. (Id.). At
the time of the TPR hearing, Mother was receiving mail in Norristown, Pennsylvania: however,
she reported that she did not reside there. (Id. at 26). Also, Ms. McNeil testified that Mother was
working approximately eight hours a week, despite previously being employed full time until
December 2018. (Id. at 25). Additionally, Ms. McNeil testified that Child was not up to date
medically while he was in Mother's custody. (Id. at 24).
Ms. McNeil also testified regarding Mother's court ordered drug screens. According to
Ms. McNeil, Mother failed to complete any random drug screens during the period of September
6, 2018 to May 29, 2019. (Id. at 15). Additionally, Ms. McNeil testified that Mother missed a
forthwith drug screen scheduled on April 11, 2019 because Mother failed to retake the drug
screen after the first sample was tampered with. (Id. at 16). Throughout the pendency of this
case, Ms. McNeil reported that Mother attended seven out of twenty-one random drug screens,
four of which were arranged by Mother on dates Mother selected (Id.). She testified that
Mother's lack of consistency with drug screening, along with unstable housing and income, have
been the most significant barriers to reunification from CUA's perspective. (Id. at 20-21).
Mother also testified at the TPR hearing. She denied the reports that her housing was
unstable and claimed she only had three different addresses during the reported time period,
including Maternal Grandmother's house. (Id. at 41). She also testified that she chose to leave
Maternal Grandmother's house with Child. (Id.). She testified that the address where she receives
her mail is her mailing address and that she currently resides with Maternal Grandmother. (Id at
46, 47).
3
Mother also testified regarding her employment. She claimed she works eight hours
weekly "on and off" because she is also employed with an agency as a home health aide. (Id. at
47, 51). She also disputed the amount of missed drug screens and testified the screens were
missed due to her employment shifts. (Id. at 47). She testified that the missed forthwith drug
screen was the result of contaminated samples by the CEU staff and she could not retake the
drug screen the same day because she had to work. (Id. at 49-50, 51).
Based on the foregoing testimony, this Court issued a decree involuntarily tenninating the
parental rights of Mother under 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5) and (8) and finding, in
accordance with 23 Pa.C.S.A. § 2511(b), that such termination best serves the developmental,
physical, and emotional needs and welfare of the Child. (Trial Court Order 11/6/19 at 1).
Mother, along with counsel, filed a timely Notice of Appeal along with a Statement of Errors
complained of on appeal pursuant to Pa.R.A.P. I 925(a)(2)(i) and (b), the latter of which is
reproduced verbatim herein:
1. The trial court erred as a matter of law and abused its discretion when it found DHS met
its burden to prove that the requirements of 23 Pa.C.S.A.2511(a) were met.
2. The trial court erred as a matter of law and abused its discretion when it found DHS met
its burden to prove that the requirements of 23 Pa.C.S.A.2511(b) were met.
3. The trial court erred as a matter of law and abused its discretion when it determined that
it was in S.H.'s best interests to change the permanency goal from reunification to
adoption.
(Statement of Errors).
4
II. DISCUSSION
A. This Court Properly Determined That It Was in S.H.'s Best Interests to Change
the Permanency Goal from Reunification to Adoption
The standard of review for changing the permanency goal of a dependent child is abuse
of discretion. In re R.MG., a Minor., 997 A.2d 339, 345 (Pa. Super. 2010). A trial court's
decision constitutes an abuse of discretion only if it is manifestly unreasonable or is the product
of partiality, prejudice, bias, or Id. Although the agency must show a goal change would
serve the child's best interests, "[s]afety, permanency, and well-being of the child must take
precedence over all other considerations" under Section 6351. Id. A goal change to adoption
might be appropriate, even when a parent substantially complies with a reunification plan,
because the Court's primary concern must be the child's best interest. In re N.C., 909 A.2d 818,
826-7 (Pa. Super. 2006).
Under these specific facts and circumstances, this Court properly determined that it was
in Child's best interest to change the permanency goal from reunification to adoption. Here,
Mother's largest barrier to reunification was instability in housing and employment, and refusal
to participate in court ordered drug testing to ensure her sobriety (N.T. 6/13/2019 at 8). There
was significant testimony from Ms. McNeil that Mother was unable to acquire safe and
permanent housing for Child, as she provided fourteen different addresses within fourteen
months. (Id. at 26). Additionally, there were still uncertainties as to Mother's permanent address
at the time of the TPR hearing, as she testified her mailing address and residence do not match.
(Id. at 26, 28). More significantly, Mother failed to comply with Court ordered drug testing,
despite the significance of her prior drug use throughout the pendency of this case. At the
permanency review hearing held on April 11, 2019, Mother was ordered to take a forthwith drug
5
screen (Trial Court Order 4/11/2019). However, Mother declined to retake the drug screen that
day after the initial drug screen was tampered with (N.T. 6/13/2019 at 11). Additionally, Mother
declined to participate in the majority of her random drug screens. (Id.). Child was adjudicated
dependent due to Mother's PCP and marijuana use and the subsequent unexplained skull fracture
Child received. (N.T. 11/6/19 at 8). Despite drug use significantly contributing to Child's
dependency, Mother failed to cooperate with most of her random drug screens, including a
forthwith drug test, and demonstrate her continued sobriety. Although Mother did attend
visitation with the Child, Mother still failed to comply with many of her objectives, specifically
continued drug screens, employment and housing. (N.T. 6/13/2019 at 12). Because Mother failed
to address these objectives, Child's safety and permanency were best served by changing her
permanency goal to adoption. Therefore, this Court did not abuse its discretion by changing
Child's permanency goal.
B. This Court Properly Granted Petitioner's Petition to Involuntarily Terminate
the Parental Rights of Mother Pursuant to Sections 2511(a)(1), (2), (5), (8) and
th/
When considering an appeal from an order involuntarily terminating parental rights, an
appellate court must accept as true the trial court's findings of facts so long as they are supported
by the record. and then determine whether the trial court made an error of law or abused its
discretion in rendering its decision. In re Adoption of S.F., 47 A.3d 817, 826 (Pa. 2012). A trial
court's decision constitutes an abuse of discretion only if it is manifestly unreasonable or is the
product of partiality, prejudice, bias, or Id. An abuse of discretion will not result merely
because the reviewing court might have reached a different decision. In re KIT., 608 Pa. 9 A.3d
1179, 1190 (2010).
6
The party seeking termination must establish, by clear and convincing evidence, the
existence of grounds for termination. In re JL.C., 837, A.2d 1247, 1251 (Pa. Super. 2003).
Clear and convincing evidence is evidence 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 CS., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en bane).
The termination of parental rights is governed by 23 Pa.C.S.A. § 2511, which requires a
two-step analysis. In the first step, the party seeking termination must prove by clear and
convincing evidence that the parent's conduct meets at least one of the 11 grounds set forth in
Section 2511(a). In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). If the court determines that
the petitioner has proven at least one of the provisions of Section 2511(a), only then does it
proceed to the second step. Id. In the second step, the court must determine whether, considering
the child's developmental, physical, and emotional needs and welfare, termination is in the best
interest of the child. 23 Pa.C.S.A. § 2511(b); In re Adoption of S.P., 47 A.3d at 830. In
conducting this analysis, the court should examine the emotional bond between parent and child,
with close attention to the effect that permanently severing any such bond will have on the child.
In re L.M, 923 A.2d at 511. Additionally, in order to affirm, an appellate court need only agree
with the trial court as to any one subsection of 2511(a), as well as 2511(b). In re B.L. W., 843
A.2d 380, 384 (Pa. Super. 2004).
Instantly, this Court found that grounds for involuntary termination of Mother's parental
rights existed pursuant to 2511(a)(1), (2), (5), (8) and (b). (See Trial Court Order 11/6/19 at 1),
This Court will address each subsection separately.
1. This Court Properly Terminated Mother's Parental Rights Pursuant to
Section 2511(4(1)
7
e"N
Pursuant to Section 2511(a)(1), Pennsylvania law provides that the rights of a parent may
be involuntarily terminated after a petition has been filed if "Nhe 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." 23 Pa.C.S.A. § 2511(a)(1).
Under these specific facts and circumstances, this Court found clear and convincing
evidence that Mother demonstrated a settled purpose of relinquishing parental claim to the Child
and failed to perform any parental duties for at least six months preceding the filing of the
termination petitions on October 21, 2019. The Child was removed from Mother's care in July
2018. (N.T. 11/6/19 at 12). Additionally, Child had previously been removed from Mother's care
from January 2017 to February 2018. (Id. at 8-9). Mother's refusal to parent since that time was
demonstrated by her failure to comply with her single case plan objectives. Mother failed to
acquire stable housing for the Child, which was one of the causes for DI-IS to reobtain custody in
July 2018. (Id at 11). Mother provided Ms. McNeil with fourteen different addresses during the
period of February 2018 to July 2018, almost all of which were deemed invalid. (Id. at 13).
Additionally, this instability was still apparent at the TPR hearing, as Mother reported that she
resided with Maternal Grandmother; however, Mother provided the Court with a different
mailing address. (Id. at 14, 26). Mother has also failed to obtain stable employment necessary to
care for Child. Ms. McNeil testified that Mother works approximately eight hours a week and
has failed to acquire more hours or income. (Id. at 47).
More notably, Mother has also failed to properly address her substance abuse history (Id.
at 14-5). Despite Mother's use of PCP and marijuana contributing to Child's adjudication as
dependent, Mother has largely failed to comply with Court ordered monitoring of potential drug
use. Although Mother tested negative for narcotics on July 25, 2018 and August 2, 2018, she
refused to take a forthwith screen on April 11, 2019, which would have allowed her to obtain
community visits with Child. (Id. at 15). Although Mother alleges that the first screen given on
April 11, 2019 was tampered with due to the screen administrator's error, she refused to give an
additional sample. (Id at 16). Instead, she returned to give a sample on a date she selected April
12, 2019. (Id. at 17). Additionally, Mother failed to complete any random drug testing during
the period of September 2018 to May 2019. (Id. at 15). Instead, Mother only attended drug
screens that she pre -arranged. Throughout the entire pendency of the case, Mother only attended
seven of twenty-one drug screens. (Id. at 16). This lack of compliance alarmed Ms. McNeil, as it
indicated a clear lack of consistency with her court objectives and raised concerns about
Mother's sobriety. (Id. at 20). Although Mother complied with screens she arranged, the lack of
participation in random drug screens indicates Mother failed to properly address one of the most
contributing factors to Child's dependency.
These minimal objectives would have demonstrated Mother's interest in caring for her child;
however, Mother made little efforts to fulfill these objectives. Additionally, Mother offered no
evidence that she made even the slightest efforts to re-establish ties with her child during the six-
month period prior to the filing of the termination petitions. Accordingly, this Court found
termination of Mother's parental rights warranted pursuant to 2511(a)(1).
2. This Court Properly Terminated Mother's Parental Rights Pursuaut to
Section 2511(a)(2)
When terminating parental rights pursuant to Section 2511(0(2), the moving party must
prove by clear and convincing evidence
9
e's eaNt;
[t]he repeated and continued incapacity, neglect, abuse or refusal of the parent has caused
the child to be without 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.
23 Pa.C.S.A. § 2511(a)(2); See also, In re Adoption of 825 A.2d 1266, 1272 (Pa. Super.
2003). Additionally, the grounds for termination of parental rights under Section 2511(0(2), due
to parental incapacity that cannot be remedied, are not limited to affirmative misconduct, but
may also include acts of refusal as well as incapacity to perform parental duties. In re A.L.D.,
797 A.2d 326, 337 (Pa. Super. 2002). In In re Adoption ofM.E. P., Westmoreland County
Children's Bureau took custody of the child, citing the mother's inability to care for her child
due to the mother's mental handicap. 825 A.2d at 1268. Following adjudication of the child, the
mother was ordered to apply for welfare program, obtain housing, and receive counseling in
order to promote her independence and parenting skills. Id. at 1269. It was reported that the
mother did not attempt to obtain welfare or housing and refused counseling. Id. As a result, the
trial court terminated the mother's parental rights approximately two years after the child was
removed from the home. Id at 1270. The Superior Court found that the mother's inability to
develop parenting skills, along with her refusal to fulfill her objectives, would leave the child
without proper parental care; thus, termination of the mother's parental rights was warranted
under Section 2511(a)(2). Id. at 1273.
Applying M.E.P. and the elements set forth under 2511(a)(2) to the instant case, it is clear
that DI-IS met their burden of demonstrating that termination was proper. The evidence
established that "incapacity" and "refusal" under 2511(a)(2) existed given that Mother failed to
demonstrate a concrete desire or ability to remedy the problems that led to the Child's placement.
Mother failed to obtain stable housing throughout the pendency of this case. At the TPR hearing,
10
es
Mother claimed she resides with Maternal Grandmother; however, she provided the Court with a
different mailing address. (Id. at 14, 26). More importantly, Ms. McNeil also testified that
Mother refused to comply with court order random drug screens in order to confirm her
continued sobriety. (Id. at 15) In fact, Mother failed to attend random drug screens for
approximately one year and failed to complete a forthwith drug screen, despite knowing that
compliance would reinstate community visits and potentially eliminate the need for future
random drug screens. (Id. at 15, 16). This lack of compliance raised significant concerns, as
Mother has a history of positive drug screens for PCP and marijuana. Since the last removal in
July 2018, Child had been in care for approximately fourteen months, yet Mother had been
unable to remedy any of the instability that barred reunification. Additionally, Mother failed to
keep Child up to date medically while he was in her custody. (Id at 24). This Court found that
Mother's failure to fully comply with her objectives throughout the life of the case has left the
Child without essential parental care, and the cause of such neglect, refusal and continued
incapacity will not be remedied by Mother. Based on the foregoing, this Court found that
competent evidence existed to justify the termination of Mother's parental rights pursuant to
Section 2511(a)(2).
3. This Court Properly Terminated Mother's Parental Rights Pursuant to
Sections 2511(a)(5) and (8)
As the requirements for terminating parental rights under Sections 2511(a)(5) and (8) are
similar, this Court will address them simultaneously. To terminate pursuant to 2511(a)(5), the
petitioner must prove that
(I) the child has been removed from parental care for at least six months; (2) the
conditions which led to removal or placement of the child continue to exist; (3) the
parents cannot or will not remedy the conditions which led to removal or placement
within a reasonable period of time: (4) the services reasonably available to the parent are
11
unlikely to remedy the conditions which led to removal or placement within a reasonable
period of time; and (5) termination of parental rights would best serve the needs and
welfare of the child.
In re B.C., 36 A.3d 601, 607 (Pa. Super. 2012). In order to terminate under 2511(a)(8), the
petitioner must prove that "(1) the child has been removed from the care of the parent for at least
twelve months; (2) the conditions that 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."
In re C L.G. 956 A.2d 999, 1005 (Pa. Super. 2008). Furthermore, unlike 2511(a)(5),
,
termination under 2511(a)(8) does not require an evaluation of a parent's willingness or ability to
remedy the conditions that led to placement. See In re Adoption ofR.JS., 901 A.2d 502, 511 (Pa.
Super. 2006) (citations omitted). Instead, 2511(a)(8) "requires only that the conditions continue
to exist, not an evaluation of parental willingness or ability to remedy them." C.L.G., 956 A.2d at
1007 (citing In re S.H., 879 A.2d 802, 806) (Pa. Super. 2005)).
3 In In re B.C., 36 A.3d 601 (Pa. Super. 2012), for example, Children and Youth Services
obtained
custody of the child after reports were received indicating that the mother and father could not care for the
child. Id. at 608. In affirming the termination of the father's parental rights, the Superior Court
emphasized the father's failure to comply with his objectives from Children and Youth Services,
including obtaining housing and addressing his history as a sex offender through treatment. Id. The court
stressed that the father's refusal to enter into treatment for the crimes he perpetrated led to the unsafe
refusal to participate
condition still being present. Id. Furthermore, the court determined that the father's
Id. at
in his objectives demonstrated that the services provided to him would not remedy the dependency.
610. Lastly, the court found that terminating the father's parental rights would best serve the
needs and
welfare of the child as it would provide the child with stability. Id. at 610.
4In In re C.L.G. , 956 A.2d 999 (Pa. Super. 2008), for example, the child was removed from
the mother's
care after the child tested positive for cocaine at birth. Id. Also, the mother did not have adequate housing
and could not properly care for the child. Id. The largest obstacle to reunification was the mother's
continued drug use and inability to obtain stable housing. Mat 1005. The trial court terminated the
mother's parental rights pursuant to 2511(08) approximately one year after the child was removed from
her care. Id. at 1003. The Superior Court affirmed the trial court's ruling, stressing that waiting further
for the mother to comply would toll the child's wellbeing. Id. at 1007. In the interest of creating stability
for the child, the court found that termination of the mother's parental rights would best serve the needs
and welfare of the child. Id at 1008-1009.
12
In the instant case, this Court determined that DHS satisfied the requirements of Sections
2511(0(5) and (8). The Child has been in care for approximately twenty-eight of the last thirty-
two months. (N.T. 11/6/19 at 13). He was initially removed from Mother's home amid concerns
regarding Mother's positive drug screen for PCP and marijuana and Child's unexplained skull
fracture. (Id. at 8). Despite a brief reunification with Mother from February 2018 to July 2018,
Child has remained in DHS custody since July 2018 due to Mother's unstable housing and her
failure to keep Child up to date medically. (Trial Court Order 7/23/2018). Since that time,
Mother has failed to remedy the issues that prevented reunification (N.T. 11/6/19 at 9-10).
Significantly, Mother has failed to comply with court ordered drug screens. (Id.). One of the
primary concerns that initiated this case was Mother's confirmed use of PCP and marijuana. (Id.
at 8). Because Mother refuses to submit to random drug tests, it is unclear that she has
maintained her sobriety and remedied a large contributing factor to Child's dependency.
Additionally, Mother has been unable to find stable housing. (Id. at 20). Although Mother claims
to reside with Maternal Grandmother, she still receives mail at another address which suggests a
lack of permanency. Also, Mother has failed to maintain stable employment to financially
support her and Child. (Id. at 20). As a result, this Court believes that Mother will not remedy
the conditions which led to the placement of her child. Also, Mother's refusal to participate in
her objectives demonstrates that the services provided to her would not alleviate the
circumstances which necessitated the original placement of the Child. Moreover, the evidence
clearly established that termination would be in the best interest and welfare of the Child as he is
well -adjusted in his pre -adoptive home and has a strong bond with their foster parent. (See Id. at
19-20). Thus, this Court properly terminated Mother's parental rights pursuant to Sections
2511(a)(5) and (8).
13
e,
C. This Court Properly Ruled that it Would be in the Child's Best Interest
to Terminate the Parental Rights of Mother Pursuant to Section 2511(b)
Having found that the statutory grounds for termination have been satisfied pursuant to
2511(a), this Court further found that termination of Mother's parental rights serves the best
interest of the Child pursuant to 2511(b).5
Under Section 2511(b), the party seeking termination must prove by clear and convincing
evidence that termination is in the best interest of the child. In re Bowman, 647 A.2d 217, 218
(Pa. Super. 1994). In determining the best interest of the child, courts must consider both the
needs and welfare of the child. In re KZS., 946 A.2d 753, 760 (Pa. Super. 2008). Intangibles
such as love, comfort, security and stability are also considered when making a determination.
Id. (citing In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006)). Furthermore, the parent -child
relationship is examined in order to determine what effcct the potential termination would have
on the child. See KZ.S., 946 A.2d at 760. Typically, when examining the nature of the parent -
child relationship, courts must consider whether there is a natural bond between the parent and
child, and if termination of parental rights would sever "an existing, necessary, and beneficial
relationship." Id. In cases where there is no evidence of a bond between a parent and child, it is
reasonable to infer that no bond exists. Id. at 762-63.
In the instant matter, this Court determined that the Child would not suffer irreparable
emotional harm if Mother's parental rights were terminated. There was compelling testimony
offered at the TPR hearing from the CUA worker that the child would not be irreparably harmed
if Mother's parental rights were terminated. (See N.T. 10/20/17 at 20-21). Although the CUA
See In re L.M., 923 A.2d 505, 51 (Pa. Super. 2007) ("Only if the court determines that the parent's
1
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)").
14
r-s
worker acknowledged that there was a bond between Mother and Child, she clarified that Child
does not seek comfort and care from Mother. (Id. 19-20). Instead, Child receives comfort from
others, including foster parents. (Id). The testimony demonstrated that the Child's primary
attachment is with his foster parents. (See Id. at 20). This Court believes that we are nowhere
closer to reunification now than we were when this case first came in in January 2017.
Additionally, in determining that termination would best serve the needs and welfare of the
Child, this Court considered that Mother has not been able to meet the Child's emotional,
physical, and developmental needs, or provide the Child with a healthy, safe environment for
thirty-two months prior to the TPR hearing. (Id. at 25-26). For the foregoing reasons, this Court
properly granted DI-IS 's petition to involuntarily terminate the parental rights of Mother pursuant
to Section 2511(b).
III. CONCLUSION
Accordingly, this Court respectfully requests that the instant appeal be denied.
BY THE COURT:
15