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[U] In re R.A.L.T.

Superior Court of Pennsylvania

July 16, 2013

IN RE: R.A.L.T., MINOR APPEAL OF: K.N., MOTHER IN RE: R.A.T., Jr., MINOR APPEAL OF: K.N., MOTHER IN RE: R.A.T., MINOR APPEAL OF: K.N., MOTHER

NON-PRECEDENTIAL DECISION

Appeal from the Order entered January 18, 2013 in the Court of Common Pleas of Philadelphia County Family Court at Nos.: 70 Adopt-2010; CP-51-AP-0000009-2012, 70 Adopt-2010; CP-51-AP-0000011-2012, 70 Adopt-2010; CP-51-AP-0000010-2012

BEFORE: DONOHUE, MUNDY, and OLSON, JJ.

MEMORANDUM

OLSON, J.

K.N. ("Mother") appeals from the orders entered on January 18, 2013, in the Court of Common Pleas of Philadelphia County, terminating her parental rights to her children, R.A.L.T., R.A.T., Jr., and R.A.T., (collectively "the Children"), pursuant to sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).[1] We affirm.

Mother first became known to the Department of Human Services ("DHS") in April of 2010, due to Mother testing positive for marijuana and benzodiazepines at the time of R.A.L.T.'s birth. N.T. TPR Hearing, 1/18/2013, at 12. At that time, Mother refused Child Abuse Prevention and Treatment Act services ("CAPTA"), and she expressed an unwillingness to stop using drugs. Id. at 13. On April 29, 2010, DHS obtained an Order of Protective Custody for the Children, and the Children were placed in foster care. Id.

Following placement, Mother was required to complete a Family Service Plan ("FSP"). Mother's objectives for the FSP were: (1) maintaining visitation with the Children, (2) learning expected behavior and setting age-appropriate expectations for the Children, (3) obtaining appropriate housing, (4) complying with all treatment recommendations from the Clinical Evaluation Unit ("CEU"), (5) maintaining a drug-free lifestyle, (6) attending therapy to develop a better relationship with the Children and improving communication, (7) providing documentation of her completion of high school or attending a GED program, (8) successfully maintaining employment, and (9) meeting regularly with the agency social worker and completing her Individual Service Plan ("ISP") objectives. Id. at 14. The trial court adjudicated the Children dependent on May 14, 2010.

On September 18, 2010, DHS referred Mother to the Achieving Reunification Center ("ARC"). Mother completed the parenting and money management courses, but she did not complete the programs involving employment, housing, and anger management. Id. at 19. The CEU recommended that Mother enter an Intensive Outpatient Dual Diagnosis treatment program, and Mother was referred to Wedge Medical Center. Id. at 18. Mother was discharged from the treatment program because she "abandoned the treatment after three sessions." Trial Court Opinion, 2/20/2013, at 8. After being discharged, Mother was referred to an Intensive Outpatient Dual Diagnosis treatment program at Warren E. Smith. Id. On June 20, 2012, she was discharged for noncompliance. N.T. 1/18/2013, at 59-60. Mother's discharge paperwork stated:

PIR [Person in Recovery]'s response to treatment was poor. PIR presented to psychotherapy group and individual session in a sporadic manner. PIR did not respond to outreach attempts that were made in order to get her engaged in treatment. . . . PIR's prognosis as the time of discharge was poor. PIR is being unsuccessfully discharged for failure to comply with the requirements of the program.

Id.

On January 5, 2013, DHS filed petitions to involuntarily terminate Mother's parental rights, and to change the Children's goals to adoption. On January 18, 2013, the trial court held a hearing on DHS's petitions. At the hearing, the trial court terminated Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). N.T. TPR Hearing, 1/18/2013, at 65-67. Mother timely filed notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court consolidated the cases sua sponte on February 26, 2013.

On appeal, Mother raises three issues:

1. 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 the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8).
2. 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, emotional needs of the child as required by the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(b)?
3. Whether, the trial court erred because the evidence was overwhelming and undisputed that Mother [] demonstrated a genuine interest and sincere, persistent, and unrelenting effort to maintain a parent-child relationship with [the Children]?

Mother's Brief at 4.

As our Supreme Court has held:

[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 [that we] accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 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. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.
As [was] discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. [In R.J.T., w]e 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. R.J.T., 9 A.3d at 1190. Therefore, . . . an appellate court [may not] 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal 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). We have explained:

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).

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). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, the trial court found that DHS presented sufficient grounds to terminate Mother's parental rights under sections 2511(a)(1), (2), (5), (8) and (b) of the Adoption Act. We will concentrate our analysis on sections 2511(a)(1) and (b).

In relevant part, section 2511 provides:

§ 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.

Section 2511 requires this Court to conduct a two-part test before terminating parental rights:

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) (internal citations omitted).

We have explained this Court's review of a challenge to the sufficiency of the evidence to support the involuntary termination of a parent's rights pursuant to section 2511(a)(1):

To satisfy the requirements of section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. . . . Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to [s]ection 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to [s]ection 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal quotations and citations omitted).

Regarding the definition of "parental duties, " this Court has stated as follows:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this [C]ourt has held that the parental obligation is a positive duty which requires affirmative performances.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parenting responsibilities while others provide the child with . . . physical and emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal quotations and citations omitted).

In In re Adoption of S.P., our Supreme Court held:

Applying [In re: Adoption of McCray] the provision for termination of parental rights based upon abandonment, now codified as § 2511(a)(1), we noted that a parent "has an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child." . . . Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.

In re Adoption of S.P., 47 A.3d at 828, quoting In re: Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975) (internal footnotes and some internal quotations omitted).

In In re Z.P., this Court instructed:

[t]o be legally significant, the [post-abandonment] contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role. The parent wishing to reestablish his parental responsibilities bears the burden of proof on this question.

In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010), quoting In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999).

The trial court found that the Children "have been in care for almost three years during which time Mother has failed to remedy the conditions that led to the removal of the Children." Trial Court Opinion, 2/20/2013, at 8. Mother argues that she "substantially completed or was working towards the completion of her FSP by the time of the filing of the termination petition." Mother's Brief at 11. Mother opines that she consistently visited the Children, no longer had a drug or mental health problem, and had suitable housing for the Children. Id. at 10-11. Mother "acknowledges that she let [the Children] down, by her drug use, and is remorseful, " and that she "learned from her past mistakes." Id. at 11.

With regard to maintaining a drug-free lifestyle, the trial court found that Mother failed to complete a drug treatment program and continues to struggle with addiction. Trial Court Opinion, 2/20/13, at 8. Mother tested positive for benzodiazepines and marijuana on August 19, 2012 and September 7, 2012. N.T. TPR Hearing, 1/18/2013, at 15-16. The trial court noted that Mother was pregnant at the time of both positive drug screens. Trial Court Opinion, 2/20/13, at 9. Additionally, the trial court stated:

Mother has expressed an inability and unwillingness to perform parental duties as evidenced by her behavior at the visits, her inability to manage her anger, her unwillingness to accept direction from the workers on her case, her lack of attendance at [the C]hildren's doctor's appointments[, ] and [her] unavailability or unwillingness to sign the consents necessary for [the C]hildren to receive medical care.

Id. at 9.

Additionally, Marcia Spencer, the DHS social worker on this case, testified that Mother did not successfully complete a drug and alcohol treatment program, did not attend counseling for her mental health issues, and was not consistent with attending medical appointments with the Children. N.T. TPR Hearing, 1/18/13, at 18-21. Ms. Spencer testified that Mother's visits with the Children were "poor, " and that Mother "never graduated from supervised visits" with the Children. Id. at 21-22; see In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008) ("[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").

After carefully reviewing the trial court's application of the law to the facts of this case, we find no reason to disturb the trial court's conclusions. We have stated:

a "parent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill 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 N.M.B., 856 A.2d 847, 856 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005). Moreover, "the parent wishing to reestablish [his or her] parental responsibilities bears the burden of proof relative to post-abandonment contact." See In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).

In re Adoption of C.L.G., 956 A.2d at 1006.

As we stated in In re Z.P., 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." In re Z.P., 994 A.2d at 1125. Additionally, "[t]he court cannot and will not subordinate indefinitely a child's need for permanence and stability to a parent's claims of progress and hope for the future." In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006); In re Adoption of C.L.G., 956 A.2d 999, 1007-1008 (Pa. Super. 2008). We find that there is competent evidence in the record to support the trial court's credibility and weight determinations. Thus, we conclude that the trial court did not abuse its discretion when it held that DHS sustained its burden with regard to section 2511(a)(1). See In re B.L.W., 843 A.2d at 384.

Having found the requirements of 2511(a)(1) satisfied, we now proceed to the trial court's application of section 2511(b). In reviewing the evidence in support of termination under section 2511(b), we consider whether the termination of parental rights would serve the developmental, physical, and emotional needs and welfare of the child. In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005).

Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond.

Id. at 1287 (internal citations omitted).

With regard to section 2511(b), this Court has stated:

In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship. In re C.S., [761 A.2d 1197, 1202 (Pa. Super. 2000)].

In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010).

As this Court has explained, the focus in terminating parental rights under section 2511(a) is on the parent, but it is on the child pursuant to section 2511(b). In re Adoption of C.L.G., 956 A.2d at 1008.

Mother argues that the "DHS presented minimal evidence as to whether the bond between Mother and [the Children] would result in any detrimental harm to the [C]hildren." Mother's Brief, at 13. Based on the testimony at the termination hearing, the trial court found that termination of Mother's parental rights would benefit the developmental, physical, and emotional needs and welfare of the Children. Trial Court Opinion, 2/20/2013, at 5. Indeed, the trial court not only ruled that termination of Mother's parental rights was in the Children's best interests, but the trial court also concluded that termination would serve the Children's well-being by allowing them to be with their foster family, away from the negative effects of Mother's visitations. N.T. TPR Hearing, 1/18/2013, at 66-67. While Mother now claims that the trial court erred in concluding that there was no bond between she and the Children, it is clear that the trial court's conclusion was within its discretion.

When conducting a bonding analysis, the 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 at 1121. Ms. Spencer and Brittany MacAdams, a foster care social worker, testified that there was no parent-child bond between Mother and the Children, and that the termination of Mother's parental rights would not cause the Children irreparable harm. N.T. TPR Hearing, 1/18/2013, at 25 and 42. Ms. Spencer and Ms. MacAdams testified that the Children have only a friendly relationship with Mother. Id. Ms. MacAdams further testified:

I don't think that it's a parent child bond. I think that they do have some sort of relationship with her, but like Ms. Spencer said, I think that it's more of a resource, a friend or an external family member coming to visit. They want to see her. They're generally happy to do so, but they don't talk about her outside of visits, and they don't show any indication of really missing her outside of visits.

N.T. TPR Hearing, 1/18/2013, at 42.

This Court has observed that 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 is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). Moreover, the trial court found that "the evidence did clearly demonstrate the strong bond the [C]hildren have with their foster family, which is the only family Mother's youngest child has ever known." Trial Court Opinion, 2/20/2013, at 15.

Finally, Mother claims that the trial court erred because the evidence demonstrated that she had shown a genuine interest and unrelenting effort to maintain a parent-child relationship with the Children. Mother's Brief at 4. However, this Court has held that a party's own feelings of love and affection for a child, alone, will not preclude termination of parental rights. In re L.M., 923 A.2d at 512. Thus, the trial court did not abuse its discretion in finding the lack of a parent-child bond, and in terminating the parental rights of Mother pursuant to section 2511(b).

After a careful review of the record, we find that there was competent evidence to support the trial court's termination of Mother's parental rights under sections 2511(a)(1) and (b) of the Adoption Act. In re Adoption of S.P., 47 A.3d at 826-27. Therefore, we affirm the trial court's orders, granting the petitions to terminate Mother's parental rights.

Orders affirmed.


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