Opinion
J-A19043-15 No. 81 WDA 2015
09-18-2015
IN RE: M.H., a Minor, APPEAL OF: D.H., Birth Mother, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered on December 16, 2014 in the Court of Common Pleas of Allegheny County, Civil Division, No. TPR No. 116 of 2014 BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
D.H. ("Mother") appeals from the Order granting the Petition filed by the Allegheny County Office of Children, Youth and Families ("CYF"), and involuntarily terminating her parental rights to her son, M.H. ("Child") (born in October 2012), pursuant to section 2511(a)(2), (5), (8), and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). We affirm.
In a separate Decree filed on December 16, 2014, the trial court involuntarily terminated the parental rights of D.M.D. ("Father") to Child pursuant to section 2511(a)(1), (2), (5), (8), and (b). Father has not challenged the termination of his parental rights, and is not a party to the instant appeal. See Trial Court Opinion, 3/11/15, at 2, n.1.
The trial court adequately and accurately set forth the factual background and procedural history of this appeal in its Opinion, which we incorporate herein by reference. See Trial Court Opinion, 3/11/15, at 2-5.
On July 15, 2014, CYF filed a Petition to involuntarily terminate Mother's parental rights to Child. At the termination hearing, CYF presented the following witnesses: Laverne Conley ("Conley"), a CYF caseworker assigned to the family, see N.T., 11/17/14, at 3-4; Virgil Pinkston, the Blair Foundation case worker who transported Child to visits with Mother since December of 2013, see id. at 44-45; Shannon Niederriter, another Blair Foundation worker who transported Child to visits with Mother, see id. at 50-51; and Neil Rosenblum, Ph.D. ("Dr. Rosenblum") the psychologist who conducted evaluations of Child with the foster parents, Mother, and Child with Mother, see id. at 57-62, 71, 110; CYF Exhibit 2. Mother testified on her own behalf, and additionally presented the testimony of an in-home service worker at Wesley Spectrum Services, Kimberly L. Thornton. See id. at 93. Finally, CYF re-called Conley as a witness. See id. at 104.
At a hearing on December 15, 2014, M.C. Henderson testified for CYF regarding Child's current status. N.T., 12/15/14, at 9. On December 16, 2014, the trial court entered its Order terminating Mother's parental rights under section 2511(a)(2), (5), (8), and (b). Mother timely filed a Notice of Appeal and her Concise Statement of Errors Complained of on Appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother presents the following claims four our review:
1. Did the trial court abuse its discretion and/or err as a matter of law in granting the [P]etition to involuntarily terminate Mother's parental rights pursuant to 23 Pa.C.S.[A.] § 2511(a)(2), [(a)](5), and (a)(8)?
2. Did the trial court abuse its discretion and/or err as a matter of law in concluding that CYF met its burden of proving by clear and convincing evidence that termination of Mother's parental rights would best serve the needs and welfare of [Child] pursuant to 23 Pa.C.S.[A.] § 2511(b)?Mother's Brief at 5.
3. Did the trial court abuse its discretion and commit an error of law by terminating Mother's parental rights pursuant to 23 Pa.C.S.[A.] § 2511(a)(8)[,] when such subsection was not plead by CYF?
We observe that Mother framed the issues somewhat differently in her Concise Statement. Nevertheless, the issues are adequately preserved for our review.
We review an appeal from the termination of parental rights in accordance with following standard:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court[,] if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. Id. at 1190.
Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio , 650 A.2d 1064, 1066 (Pa. 1994).In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations omitted).
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)).
The trial court terminated Mother's parental rights under section 2511(a)(1), (2), (5), (8), and (b). In this appeal, Mother challenges the trial court's termination under each of these subsections. This Court may affirm a trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we focus our discussion solely on subsections (a)(2) and (b), which provide as follows:
Mother's first and third issues challenge the trial court's termination pursuant to subsections (a)(5) and (8). Because we affirm the trial court's termination pursuant to subsection (a)(2), we need not address Mother's first and third issues. See In re B.L.W., 843 A.2d at 384. However, we are cognizant that CYF's Petition did not seek termination pursuant to subsection (a)(8), and there is no evidence supporting termination under that subsection. See N.T., 12/15/14, at 4-6; see also Trial Court Opinion, 3/11/15, at 9-10. As we affirm the trial court's termination pursuant to subsection (a)(2), we need not address the trial court's termination under subsection (a)(8). See In re B.L.W., 843 A.2d at 384.
§ 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:
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(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.
23 Pa.C.S.A. § 2511(a)(2), (b).
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(b) Other considerations.--The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.
To satisfy the requirements of Section 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal 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).
The grounds for termination of parental rights under Section 2511(a)(2), 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).
A decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based upon parental incapacity. The legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.In re Adoption of S.P., 47 A.3d at 827.
In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 891 (Pa. 1986) (quoting In re: William L., 477 Pa. 322, 383 A.2d 1228, 1239 (Pa. 1978)).
A parent is required to make diligent efforts toward the reasonably prompt assumption of full parental responsibilities. In re A.L.D. 797 A.2d at 337. 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. at 340.
Our review discloses that in its March 11, 2015 Opinion, the trial court properly discussed the evidence presented relevant to the requirements of section 2511(a)(2). See Trial Court Opinion, 3/11/15, at 6-7. The record includes ample, competent, clear and convincing evidence to support the trial court's determination that Mother has not demonstrated any ability to remedy the circumstances that led to Child's placement, nor is there any indication that she could remedy such circumstances in the foreseeable future, even with continued services in place. See id. We must defer to the trial judge's determination, 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. See In re Adoption of S.P., 47 A.3d at 826-27.
When the requirements of section 2511(a) have been satisfied, the reviewing court next reviews the record as to whether the requirements of section 2511(b) are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc). 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. Id. at 1008.
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d at 791.In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
In conducting a bonding analysis, the trial court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). As this Court has observed, no bond worth preserving is formed between a child and a natural parent where the child has been in foster care for most of the child's life, and the resulting bond with the natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). Therefore, it is appropriate to consider a child's bond with a foster parent or parents. See In re T.S.M., 71 A.3d at 268.
In its Opinion, the trial court explained its decision to terminate Mother's parental rights under section 2511(b), which we incorporate herein by reference. Trial Court Opinion, 3/11/15, at 10-11. Our careful review of the record discloses that the trial court properly discussed the evidence against the requirements of section 2511(b). See id. Our review discloses sufficient evidence from which the trial court properly determined that Mother failed to "exhibit [the] bilateral relationship which emanates from the parent['s] willingness to learn appropriate parenting . . . ." In re K.K.R.-S., 958 A.2d 529, 534 (Pa. Super. 2008). As Mother did not put herself in a position to assume daily parenting responsibilities, she could not develop a real bond with Child. See In re J.L.C., 837 A.2d at 1249. Additionally, as part of its bonding analysis, the trial court appropriately examined Child's relationship with his foster parents. Trial Court Opinion, 3/11/14, at 10-11; see also In re T.S.M., 71 A.3d at 267-68 (stating that the court must consider whether the child has a bond with the foster parents).
The mere existence of a bond or attachment of Child to Mother does not necessarily result in the denial of a termination petition, and that "[e]ven the most abused of children will often harbor some positive emotion towards the abusive parent." In re: T.S.M., 71 A.3d at 267 (quoting In re K.K.R.-S., 958 A.2d at 535). "The continued attachment to the natural parents, despite serious parental rejection through abuse and neglect, and failure to correct parenting and behavior disorders which are harming the children cannot be misconstrued as bonding." In re T.S.M., 71 A.3d at 267 (citation omitted). Thus, we will not disturb the trial court's decision. In re Adoption of S.P., 47 A.3d at 826-27.
While Mother may claim to love Child, a parent's own feelings of love and affection for a child, alone, will not preclude termination of parental rights. In re Z.P., 994 A.2d at 1121. A child's life "simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting." Id. at 1125. Rather, "a parent's basic constitutional right to the custody and rearing of [her] child is converted, upon the failure to fulfill [] her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment." In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
Accordingly, we affirm the trial court's Order terminating Mother's parental rights to Child pursuant to section 2511(a)(2) and (b) of the Adoption Act.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2015 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: M.H. a minor. TPR No. 116 of 2014 Superior Court No. 81 WDA 2015
Copies by first class mail to:
Alexandra Gruskos, Esquire
Office of Children, Youth & Families
Legal Unit - Adoption Department
Fort Pitt Commons, Suite 101
445 Fort Pitt Boulevard
Pittsburgh, PA 15219
Raymond N. Sanchas, Esquire
Allegheny County Bar Foundation
11th Floor Koppers Building
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Pittsburgh, PA 15219
Lynne Sherry, Esquire
Office of Conflict Counsel
Dependency Division
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429 Forbes Avenue
Pittsburgh, PA 15219
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