Opinion
J-S65005-18 No. 298 MDA 2018 No. 299 MDA 2018
11-21-2018
IN THE INTEREST OF: D.N.W., A MINOR APPEAL OF: S.O., NATURAL MOTHER IN THE INTEREST OF: N.M.W., A MINOR APPEAL OF: S.O., NATURAL MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree January 11, 2018
In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-8511 Appeal from the Decree January 11, 2018
In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-8512 BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY SHOGAN, J.:
S.O. ("Mother") appeals the decrees terminating her parental rights to her minor daughters, D.N.W. (born in August of 2013) and N.M.W. (born in July of 2014) (collectively, "the Children"), pursuant to 23 Pa.C.S. § 2511(a)(2) and (b). We affirm.
By separate decrees, the trial court involuntarily terminated the parental rights of D.M.L.W. ("Father") on January 11, 2018. Father filed separate appeals at 316 MDA 2018 and 317 MDA 2018.
We note with displeasure that neither CYS nor the Children's guardian ad litem has filed a responsive brief.
The orphans' court fully set forth the facts of this case in its Pa.R.A.P. 1925(a) opinion, and we summarize the procedural background as follows: The record reveals that CYS assumed care of the Children on January 27, 2015, pursuant to a shelter care order. Reasons for the placement were the hospitalization of the natural parents, domestic violence, parental mental health and substance abuse issues, and unstable housing. Subsequently, the Children were placed in foster care on September 21, 2015. On November 28, 2016, Luzerne County Children and Youth Services ("CYS") filed a petition for the involuntary termination of Mother's parental rights to the Children. The orphans' court conducted a termination hearing over several days, beginning on May 8, 2017, and ending on July 26, 2017.
The Children were represented by legal counsel and an attorney-guardian ad litem ("GAL"). Legal counsel was permitted to withdraw after the GAL advised the orphans' court that there was no conflict between the Children's legal and best interests and that no party objected to counsel's withdrawal. N.T., 5/8/17, at 3.
In support of its burden of proving by clear and convincing evidence that termination was warranted, CYS called the following witnesses: Alicia Singer, senior clinician at Community Counseling Services; Grace Tavaris, case manager in the Intensive Family Reunification parenting program of Family Services Association; Marisue Sack, employed by Family Services Association in the Intensive Family Reunification parenting program; Deborah Ficco, representative payee of Fitzmaurice Community Services; and Sherri Hartman, caseworker for CYS. In response, Mother testified on her own behalf and called Donald Grahm, a therapist at Haven House and navigator of its wellness recovery team.
On January 11, 2018, the orphans' court filed decrees terminating Mother's parental rights to the Children. On February 9, 2018, Mother filed timely notices of appeal. Both Mother and the trial court complied with Pa.R.A.P. 1925.
Mother presents two questions for our consideration:
I. Did the trial court abuse its discretion, commit an error of law, and/or there was insufficient evidentiary support in terminating the parental rights of the natural mother of N.M.W. and D.N.W., as the grounds pursuant to 23 PA. C.S.A. § 2511(a)(2) were not established by clear and convincing evidence, and such granting of a petition to terminate parental rights was against the weight of the evidence presented by the parties.Mother's Brief at 3 (full capitalization omitted).
II. Did the trial court abuse its discretion, commit an error of law, and/or there was insufficient evidentiary support for the court's decision that the best needs and welfare of the minor child N.M.W. and D.N.W. would be served by terminating natural mother's parental rights as required by 23 PA. C.S.A. § 2511(b).
We consider Mother's issues according to the following standards:
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court's decision, however, should not be reversed merely because the record would support a different result.In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted). Moreover:
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. 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 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)) (internal citations omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 25101-2938, governs termination of parental rights, and it requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). See also In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc) (explaining 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).
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). 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. § 2511(a)(2) and (b). Orphans' Court Opinion, 3/12/18, at 2. Those subsections 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:23 Pa.C.S. § 2511.
* * *
(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.
* * *
(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.
Regarding Section 2511(a)(2), this Court has stated as follows:
In order to terminate parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), the following three elements must be met: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation omitted). Further, we have opined that "[t]he grounds for termination due to parental incapacity that cannot be remedied are not limited to affirmative misconduct. To the contrary, those grounds may 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) (citations omitted). Parents are required to make diligent efforts toward the reasonably prompt assumption of full parental responsibilities. Id. at 340. A parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous. Id.
Pursuant to Section 2511(b), this Court must analyze whether termination is in the best interests of the Children. In re L.M., 923 A.2d at 511. "Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child." In re K.Z.S., 946 A.3d 753, 760 (Pa. Super. 2008). This Court will also look to the bond between the child and parent and determine the impact that termination of the parental relationship would have on the child. Id.
Additionally, "[t]he statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state may properly be considered unfit and have his parental rights terminated." In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super.2001). We have recognized a connection between Pennsylvania's law on termination of parental rights and the federal Adoption and Safe Families Act ("ASFA"), 42 U.S.C. § 671 et seq. The stated policy of AFSA is:
to remove children from foster placement limbo where they know neither a committed parent nor can look toward some semblance of a normal family life that is legally and emotionally equivalent to a natural family.... States such as Pennsylvania, which participate in the program, are required to return the child to its home following foster placement, but failing to accomplish this due to the failure of the parent to benefit by such reasonable efforts, to move toward termination of parental rights and placement of the child through adoption. Foster home drift, one of the major failures of the child welfare system, was addressed by the federal government by a commitment to permanency planning, and mandated by the law of Pennsylvania in its participation in [AFSA]. Succinctly, this means that when a child is placed in foster care, after reasonable efforts have been made to reestablish the biological relationship, the needs and welfare of the child require CYS and foster care institutions to work toward termination of parental rights, placing the child with adoptive parents. It is contemplated this process realistically should be completed within 18 months.In re B.L.L., 787 A.2d at 1016.
We have thoroughly reviewed the briefs of the parties, the relevant law, and the certified record before us, including the opinion of the orphans' court dated March 12, 2018, which addresses the issues raised by Mother in her Pa.R.A.P. 1925(b) statement. Upon review, we determine that Mother has failed to establish that the orphans' court abused its discretion when it involuntarily terminated Mother's parental rights. The orphans' court has provided a thorough evaluation supporting termination of Mother's parental rights pursuant to Section 2511(a)(2) and (b). Thus, we conclude that Mother's issues lack merit, and the orphans' court's opinion adequately addresses Mother's claims. Accordingly, we affirm on the basis of the orphans' court's opinion and adopt its reasoning as our own.
The parties are directed to attach a copy of the orphans' court's March 12, 2018 opinion to any future filings in this matter.
Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/21/2018
Image materials not available for display.