Opinion
J-S01002-16 No. 1724 EDA 2015
01-28-2016
In the Interest of: K.N.H. a/k/a K.H., a Minor, APPEAL OF: S.K.D. a/k/a S.G. a/k/a S.K.G. a/k/a S.D., a Mother
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order May 11, 2015 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): CP-51-AP-0000712-2014; CP-51-DP-0001129-2013; FID: 51-FN-002207-2013 BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
S.K.D. a/k/a S.G. a/k/a S.K.G. a/k/a S.D. ("Mother") appeals from the Order granting the Petition filed by the Department of Human Services ("DHS") to involuntarily terminate her parental rights to her minor child, K.N.H. a/k/a K.H. ("Child"), a daughter born in August 2011, pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). We affirm.
DHS also included M.H. ("Father") in its Petition for involuntary termination of parental rights. In May 2015, Father signed voluntary relinquishment petitions.
The trial court aptly summarized the factual and procedural history of this case, which we adopt for the purposes of this appeal. See Trial Court Opinion, 9/9/15, at 1-5.
Relevantly, in May 2013, DHS received a report from General Protective Services that Mother was found passed out in a shopping mall bathroom while with Child, who was two years old at the time. Mother was transported to the hospital, and it was determined that she had overdosed on heroin. Mother left the hospital that day against medical advice. DHS obtained an Order of Protective Custody, and Child was temporarily placed at Baring House before being placed with her paternal grandparents. On June 10, 2013, the Child was adjudicated dependent.
In the approximately 2 years that followed, Mother was incarcerated on three separate occasions. Mother refused to participate in visitations with Child while she was in prison. While Child was in the custody of DHS, Mother did not complete her Family Service Plan ("FSP") objectives and only visited Child 7 times.
In December 2014, DHS filed an Involuntary Termination of Parental Rights ("ITPR") Petition under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b).
The trial court conducted a hearing on the Petition on May 11, 2015. As Mother was in prison awaiting trial, she participated via telephone. After hearing the evidence, the trial court terminated Mother's parental rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Mother filed a timely Notice of Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Mother raises the following questions for our review:
I. Whether the trial court committed reversible error when it involuntarily terminated Mother's parental rights where such
determination was not supported by clear and convincing evidence under [] 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8)?Mother's Brief at 4.
II. Whether the trial court committed reversible error when it involuntarily terminated Mother's parental rights without giving primary consideration to the effect that the termination would have on the developmental, physical and emotional needs of [C]hild as required by [] 23 Pa.C.S.A. § 2511(b)?
We review an appeal from the termination of parental rights in accordance with the following standard:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Termination of parental rights is controlled by section 2511 of the Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner "to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid." In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). "[C]lear 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. (citation and quotation marks omitted). Further, the "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., 855 A.2d 68, 73-74 (Pa. Super. 2004). If the 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).
Satisfaction of any one subsection of Section 2511(a), along with consideration of Section 2511(b), is sufficient for the involuntary termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we will review the trial court's decision to terminate Mother's parental rights based upon Section 2511(a)(1) and (b), which state the following:
§ 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.
* * *
(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.
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. ... [P]arental duty is best understood in relation to the needs of a child. ... [T]his court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty ... requires a continuing interest in the child and a genuine effort to maintain communication and association with the child.In the Interest of J.T., 983 A.2d 771, 776-77 (Pa. Super. 2009) (internal quotations and citations omitted).
In regard to incarceration and the preservation of parental rights, we have stated the following:
[I]ncarceration of a parent does not, in itself, provide sufficient grounds for termination of parental rights; however, an incarcerated parent's responsibilities are not tolled during [her] incarceration. ... [P]arental duty requires that the parent not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of [her] ability, even in difficult circumstances.In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations omitted); see also In re S.P., 47 A.3d 817, 828 (Pa. 2012). Further,
[a] parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
In her first claim, Mother asserts that the trial court erred in granting the ITPR Petition because DHS did not satisfy by clear and convincing evidence that her parental rights should be terminated under Section 2511(a). Mother's Brief at 9. As to the requirements of subsection (a)(1), Mother argues that she completed her FSP objectives by participating in parenting classes, anger management classes, and an in-patient drug and alcohol program while she was in prison. Id. at 12. Mother claims that she declined visitation with Child while she was in prison because she did not think it was in Child's best interests. Id. Mother also claims that she maintained communication with Child by sending letters and cards, and by asking Child's paternal grandparents and DHS about Child's welfare. Id. at 12-13.
The trial court appropriately applied Section 2511(a)(1) to this case, and we adopt its Opinion as to that subsection for the purposes of this appeal. See Trial Court Opinion, 9/9/15, at 7-8; see also In re B., N.M., 856 A.2d 847, 858 (Pa. Super. 2004) (concluding that father showed a settled purpose of relinquishing his parental rights where he sat idle for most of child's life while mother performed all parental duties, and that father's wish to not have his "parental rights terminated was insufficient to protect those rights without acting affirmatively to foster a parental relationship with [c]hild during his incarceration.").
Additionally, we note that Mother's only explanation for her conduct was that she "had a few bad years." N.T., 5/11/15, at 38.
In her second claim, Mother argues that the trial court failed to give proper consideration of the effect of termination of her rights on Child's needs and welfare according to Section 2511(b). Mother's Brief at 14. Mother asserts that DHS social worker Molly McNeill's ("McNeill") testimony that Child had no bond with Mother was inappropriate because McNeill only supervised one visit. Id. at 15.
The trial court set forth the relevant law regarding Section 2511(b), and determined that it was in Child's best interest to terminate Mother's parental rights. See Trial Court Opinion, 9/9/15, at 12-13; see also In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that "courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents."). Upon our review, the trial court appropriately applied Section 2511(b) to this case, and we adopt its Opinion for the purposes of this appeal. See Trial Court Opinion, 9/9/15, at 12-13.
Based upon the foregoing, the trial court did not err in granting the ITPR Petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/28/2016
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